Osogo (Suing as The Registered Trustee of Kenya Youth Hostels Association) & 4 others v Maseki & 6 others; Hadassah Hotel (Objector) (Environment & Land Case 1042 of 2013) [2022] KEELC 2430 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an eight-year-old default judgment because the defendants had real defences, but ordered them to pay costs for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons was proved on the 4th, 6th and 7th Defendants
Service was proved; there were affidavits of service on record, the Applicants appeared through counsel, and no evidence showed the affidavits were incorrect
The court found affidavits of service on record. The 4th Defendant was represented by counsel who actively participated before becoming indolent, and the 6th and 7th Defendants entered appearance through Kimani Muhoro Advocates with no evidence the firm lacked instructions. The burden lay on the Applicants to rebut the presumption of service and they failed to discharge it.
Whether interlocutory judgment was irregularly entered on an unliquidated claim
No interlocutory judgment was entered under Order 10 rule 6; the Deputy Registrar only set the suit down for formal proof hearing under Order 10 rule 9
The court examined the record and found that on 12th November 2013 the Deputy Registrar gave directions under Order 10 rule 9 directing the Plaintiffs to set the suit down for hearing, rather than entering interlocutory judgment under Order 10 rule 6. The Plaintiffs had inadvertently applied for interlocutory judgment, but what was actually done on record was a direction for formal proof.
Whether the default judgment and proceedings were regular
The default judgment was regular; the Plaintiffs abandoned their Notice of Motion dated 20th August 2013 without objection, so the court was not obliged to determine it before judgment
The judgment was regular because the Defendants were served but failed to file memoranda of appearance and defences (4th Defendant) or defences within the statutory period (6th and 7th Defendants). The pending application had been abandoned by counsel in open court in June 2017 without objection, so proceeding to judgment was regular.
Whether the regular default judgment should be set aside in the discretion of the court
The judgment was set aside in the interest of justice: the draft defences raised triable issues and the prejudice to the Plaintiffs was remediable by thrown away costs
Although the Applicants gave no plausible explanation for the over-eight-year delay and the judgment was regular, the court considered the draft defences, which raised triable issues including who the registered trustees of Kenya Youth Hostels Association were at the material time. Counsel for the 6th and 7th Defendants and the 1st and 2nd Defendants are deceased, the 4th Defendant remains in possession, and the Plaintiffs' prejudice could be cured by costs. The court thus exercised its discretion to set aside.
Whether Meritad Law Africa LLP was properly on record after judgment
Yes; leave was granted since Order 9 rule 10 allows the application for change of advocate to be combined with other prayers, with the change determined first
Order 9 rule 9 bars a change of advocates after judgment without consent or a court order, but Order 9 rule 10 permits the application to be combined with other prayers provided the question of change of advocate is determined first. The court allowed the leave sought as prayer (a) of the 6th and 7th Defendants' application.
Legal principles established
#- Where an affidavit of service is on record there is a presumption of service and the burden lies on the party questioning it to show the return is incorrect
- A defendant duly served who fails to enter appearance or file defence obtains a regular default judgment; the court has unfettered discretion under Order 10 rule 11 to set it aside on just terms considering reason for failure, delay, triable issues, prejudice and the interest of justice
- The tests for setting aside a default judgment are whether there is a defence on merits, whether there would be prejudice, and the explanation for delay
- An application to come on record after judgment may be combined with other prayers provided the question of change of advocate is determined first
Court orders
#- 1.Leave granted to the firm of Meritad Law Africa LLP Advocates to come on record for the 6th and 7th Defendants
- 2.The interlocutory judgment dated 24th October 2019, the decree and all consequential orders set aside on condition that the 4th, 6th and 7th Defendants pay throw away costs of Kshs.20,000/- to the Plaintiffs within 21 days
- 3.The 4th, 6th and 7th Defendants' draft defences deemed duly filed upon payment of the requisite fees
- 4.Any other defendant to file their defence within twenty-one (21) days from the date of the ruling
- 5.Parties to comply with Order 11 of the Civil Procedure Rules
- 6.Costs of the applications borne by the 4th, 6th and 7th Defendants
- 7.Matter to be mentioned for pretrial conference on 14th June 2022 to confirm compliance
- Jurisdiction invoked
- Order 10 rule 11 and Order 12 rule 7 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act; Articles 50 and 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osogo (Suing as The Registered Trustee of Kenya Youth Hostels Association) & 4 others v Maseki & 6 others; Hadassah Hotel (Objector) (Environment & Land Case 1042 of 2013) [2022] KEELC 2430 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2430/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.