Benson W. Kaos & 72 others v Attorney General & 86 others [2022] KEELC 1048 (KLR)
The bottom line
#A Kenyan court set aside a land judgment against 80 defendants, but only because they paid security and costs — showing courts will rescue them, not for free.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment of 27/05/2021 was regular or irregular
The judgment was regular because summons were served by advertisement in the Standard Newspaper of 12/03/2018 pursuant to a court order for substituted service; the applicants were duly served but failed to enter appearance
The affidavit of service by George Mumali covered only the 1st - 5th Defendants. Service on the 7th - 86th Defendants was effected through newspaper advertisement under Order 5 Rule 17 after the court ordered substituted service on 26/02/2018. The applicants' claim that Patakwa was too remote for newspapers to circulate was disbelieved as a falsehood and a design to conceal the fact of service.
Whether the regular judgment should nonetheless be set aside
Yes, but only on conditions, because the applicants demonstrated a defence raising a triable issue and a counterclaim, despite their deliberate non-participation and delay
Applying the Kanyiita factors (reason for default, delay, triable issues, prejudice, interest of justice), the court noted the suit was almost seven years old and parties were elderly, but the demonstrated triable issue and counterclaim tipped the balance. Setting aside was therefore conditional on security deposit and thrown away costs, with automatic reinstatement on default.
Legal principles established
#- A default judgment entered against a defendant not served with summons is irregular and must be set aside as a matter of right, while a regular default judgment is set aside in the court's discretion on conditions
- The discretion to set aside a regular judgment is wide but must be exercised judiciously to further the ends of justice and not to assist a party who deliberately obstructs justice
Court orders
#- 1.Judgment delivered on 27/05/2021 set aside on conditions
- 2.Applicants to deposit Kshs. 3,650,000/= into Court within 21 days as security, being the general damages ordered payable to the Plaintiffs
- 3.Applicants to pay thrown away costs of Kshs. 65,000/= to the Plaintiffs within 21 days
- 4.In default of conditions (i) and (ii) the orders are automatically vacated and the judgment reinstated
- 5.Applicants granted leave to file the annexed draft defence and counterclaim with witness statements, lists of witnesses and documents within 7 days of the deposit
- 6.Plaintiff's case reopened only to the extent that PW1 and PW2 are recalled for cross-examination and re-examination by the 7th - 86th Defendants
- 7.Plaintiffs granted leave to file a reply to defence and documents within 14 days of service; the 1st - 6th Defendants granted similar concurrent leave
- 8.Suit to be mentioned on 26/04/2022 for further directions
- 9.Applicants to bear costs of the Application
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson W. Kaos & 72 others v Attorney General & 86 others [2022] KEELC 1048 (KLR)", Case Analysis (2022). ELC Case No. 50 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1048/eng@2022-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.