Not stated in the excerpt (Plaintiff/Respondent v Defendant/Applicant)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment, ruling that a fee dispute with a lawyer counts as an excusable reason to allow a late defence.
What this practically means
#Executive summary
#Key legal issues
#Whether a regular default judgment should be set aside where the failure to enter appearance was attributable to the instructed advocate over unpaid legal fees
Yes - the reasons were excusable, the application was made without delay, and the defence raised triable issues; substantive justice favoured setting aside the judgment.
The court confirmed the judgment was regular since service was admitted. However, Order 10 Rule 11 confers a wide discretion to set aside even regular judgments on just terms. Following Shanzu Investments and Yooshin Engineering, the court weighed the defence on the merits, absence of prejudice, and the explanation for delay. The email correspondence showed the defendant intended to defend but disputed legal fees with its former advocates, a reason the court found excusable, and the annexed defence raised triable issues.
Whether the draft defence raises triable issues
The defence, which disputed the amounts owed and denied interest or default penalty, raises triable issues which must go to trial.
The court perused the draft defence, which disputed the quantum of indebtedness and denied that the amounts attracted interest or default penalty. It held that whether the defence would succeed or whether it would be substantiated by evidence was a matter for trial, not for determination on an interlocutory application. This disclosure of triable issues supported the exercise of discretion to set aside the default judgment.
Legal principles established
#- The discretion to set aside a regular default judgment is wide but must be exercised judiciously on terms just to both parties, considering whether there is a defence on the merits, any prejudice, and the explanation for delay.
Court orders
#- 1.The judgment entered on 20th December, 2023 is hereby set aside
- 2.The statement of defence dated 21st February, 2024 is deemed as filed and properly on record subject to payment of the requisite filing fees, which should not be later than 7 days from the date hereof
- 3.The defendant/applicant to bear the costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 10 Rule 11, Order 22 Rule 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Not stated in the excerpt (Plaintiff/Respondent v Defendant/Applicant)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4536/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.