Macharia & another v Macharia & 2 others
The bottom line
#If you ignore a court summons in Kenya and lose by default, you must ask the trial court to set aside the judgment before you can appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was competent where the Appellants bypassed the Order 10 rule 11 setting-aside remedy
The appeal was incompetent; the Appellants, having been duly served and never moving the trial Court to set aside the ex parte judgment, could not raise the issues for the first time on appeal
The record showed an affidavit of service compliant with Order 10 rule 2, making the default judgment regular. A regular default judgment is addressed by an application under Order 10 rule 11, and an appeal lies from the resulting order. The Appellants never sought review, variation or setting aside, so the discretion of the trial Court was never invoked and could not be interfered with on appeal.
Whether the Appellants' adverse possession claim could be entertained on appeal
No; it was a new issue requiring evidence that was never adduced at trial and could not be raised for the first time on appeal
The Appellants did not participate in the trial, did not challenge the evidence adduced there, and raised the adverse possession claim only in the memorandum of appeal. The Court held that an appellant seeking to benefit from an appeal from an ex parte decree must challenge the merits based on evidence actually adduced, not matters never placed before the trial Court.
Whether the trial Court's judgment should be set aside as an irregular default judgment
No; the judgment was regular since the Appellants were served, and the setting-aside discretion was never exercised by the trial Court
Relying on James Kanyiita Nderitu, the Court distinguished regular from irregular default judgments. Where there is proof of service, the defendant's remedy is an application under Order 10 rule 11, in which the trial Court has unfettered discretion. The Appellants never made such an application, so there was no exercise of discretion for the appellate Court to review.
Legal principles established
#- A defendant served with summons who fails to enter appearance must first move the trial Court under Order 10 rule 11 to set aside a regular default judgment before appealing
- A first appellate court will not interfere with a discretionary decision of the trial Court that was never invoked or exercised
- The role of a first appellate court is to re-evaluate, reassess and reanalyze the evidence on the record as espoused in Section 78 of the Civil Procedure Act
Court orders
#- 1.The appeal is dismissed
- 2.The Respondents shall have the costs of the appeal
- On appeal from
- Chief Magistrate's Court at Murang'a (CMELC)
- E085 of 2021
- Jurisdiction invoked
- Sections 65 & 79G of the Civil Procedure Act (appeals from subordinate courts to the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia & another v Macharia & 2 others", Case Analysis (2023). Environment and Land Appeal E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19184/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.