Were v Gardison & 3 others
The bottom line
#The Environment and Land Court in Kakamega dismissed a landowner's bid to revive his case, ruling that a five-month unexplained delay and a weak excuse did not justify setting aside the judgment against him.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellate court could interfere with the magistrate's discretionary refusal to set aside the judgment
It could not; no misdirection or failure to consider relevant matters was established.
The court applied the settled principle that interference with discretion requires a clear misdirection, reliance on irrelevant matters or failure to consider relevant ones, resulting in a wrong conclusion. The appellant established none of these; the magistrate had properly weighed the reasons for non-attendance, the delay, and the interest of justice.
Whether the appellant's explanation for non-attendance was credible and whether the delay was excusable
The explanation was not candid; the delay of over five months was unreasonable and attributable to both appellant and counsel.
The clerk said to have been instructed was not named and did not swear an affidavit; no medical evidence supported the illness claim; the COVID-19 excuse was rejected since courts remained accessible; and the failure was only noticed in July 2020 when the appellant learned the property belonged to the respondents.
Whether the appellant was deprived of a hearing given his intention to withdraw the suit
He was not; his own affidavit showed he planned to withdraw the case, so he could not claim deprivation of a hearing.
The court reasoned that a party whose own plan was to withdraw the suit cannot invoke substantial justice to demand a full hearing. The mistake-counsel argument also failed because the delay was attributable to the appellant himself, not merely his advocates.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong due to misdirection, reliance on wrong matters, or failure to consider relevant matters, resulting in a wrong conclusion.
- In a regular default judgment, the court has unfettered discretion to set aside under Order 10 rule 11, considering reason for failure, delay, triable issues, prejudice and the interest of justice.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- Chief Magistrate's Court at Kakamega
- Kakamega MCELC No 381 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court ruling (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Were v Gardison & 3 others", Case Analysis (2022). Environment and Land Appeal E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4797/eng@2022-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.