Kenya Anti- Corruption Commission v Bernsoft Limited & 2 others (Environment & Land Case 168 of 2009) [2024] KEELC 800 (KLR)
The bottom line
#A Kenyan court gave two companies a second chance after a default judgment but refused the same relief to a defendant who ignored the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd Defendants met the threshold for setting aside the default judgment of 16th February 2023
Although the applicants failed to demonstrate lack of service, the court exercised its discretion in the interest of justice and set aside the judgment conditionally, deeming their defence properly filed
The court found the plaintiffs' averments of non-service unproven and the applicants' explanations implausible, but noted the suit was not for liquidated or pecuniary damages so no interlocutory judgment could lawfully have been entered. The draft defence raised triable issues (claim of innocent purchaser for value), and given the overriding objective under Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act, the judgment was set aside on conditions including throw-away costs and strict timelines, with automatic lapse on default.
Whether the 3rd Defendant met the threshold for setting aside the default judgment
The 3rd Defendant's application was dismissed
The 3rd Defendant had filed a Statement of Defence but failed to attend court or call evidence despite service of hearing notices on his advocates; he offered no reasonable explanation for non-attendance. The court found he negligently avoided the proceedings and that the opportunity to set aside was not available to him, the decree having already been executed and registered at the Lands Registry.
Award of costs of the two applications
Costs of the 1st and 2nd Defendants' application were granted to be in the cause; the 3rd Defendant was ordered to pay the plaintiff's costs of his application
Section 27 of the Civil Procedure Act vests costs in the court's discretion, with costs ordinarily following the event unless for good reason otherwise ordered. Applying Morgan Air Cargo, the discretion depends on the circumstances of each case; here the plaintiff substantially succeeded against the 3rd Defendant while the 1st and 2nd Defendants' application was allowed.
Legal principles established
#- An irregular ex parte judgment, for example one obtained without proper service of summons, ought to be set aside ex debito justitiae and not merely as a matter of discretion
- The court has wide discretionary power to set aside or vary a default judgment on such terms as are just
- Where a defendant fails to adduce evidence, the plaintiff's evidence is uncontroverted but the plaintiff must still prove its case on a balance of probability
Court orders
#- 1.The Notice of Motion dated 16th March 2023 by the 1st and 2nd Defendants be and is found to have merit and is allowed
- 2.The Notice of Motion dated 15th May 2023 by the 3rd Defendant be and is found to lack merit and is dismissed
- 3.The 1st and 2nd Defendants' Statement of Defence shall be deemed to be properly filed and served upon payment of the prerequisite court filing fees
- 4.The 1st and 2nd Defendant/Applicants shall serve the said Statement of Defence within two (2) days of the order
- 5.The 1st and 2nd Defendant shall pay the plaintiff throw away costs of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000.00) within two (2) days
- 6.In default of compliance with orders (c), (d) and (e), the order vacating the interlocutory judgment shall automatically lapse without further reference to the court
- 7.The matter be set down for case management conference on priority basis on 14th March 2024 and be concluded within 60 days from the order, on 19th June 2024
- 8.Costs of the Notice of Motion dated 16th March 2023 shall be in the cause, while the costs of the Notice of Motion dated 15th May 2023 shall be paid to the Plaintiff by the 3rd Defendant right away
- Jurisdiction invoked
- Sections 3 & 13 of the Environment and Land Court Act, No. 19 of 2011; Sections 80, 1A, 1B, 3A, 27, 63(e) and 100 of the Civil Procedure Act, Cap. 21; Order 10 rule 11, Order 12 rule 7 and Order 22 rule 22 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti- Corruption Commission v Bernsoft Limited & 2 others (Environment & Land Case 168 of 2009) [2024] KEELC 800 (KLR)", Case Analysis (2024). ELC Civil Suit (formerly 180 of 2009, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/800/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.