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ELCPartially AllowedELC 245 of 2017 (Malindi)· [2025] KEELC 1004 (KLR)

Mshanga & another v Group) Company Limited & another (Environment & Land Case 245 of 2017) [2025] KEELC 1004 (KLR)

Environment and Land Court
4 March 2025
MNMwangi Njoroge
2,565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Malindi on the Defendant's Notice of Motion dated 16/12/2019 seeking to set aside the ex-parte judgment of 31/1/2019, the consequent decree, and the proceedings of 26/6/2018, and for leave to file a defence. The Defendant, who had entered appearance but filed no defence and whose advocates did not attend the hearing, learned of the judgment only on 10/12/2019 when warrants of sale were served. It blamed its former advocates and asserted a good defence and counterclaim, alleging the Plaintiff had sold the suit land, Kilifi/Gede/Mjomboni/973, to one Leonard Mbonani Bikangi, from whom the Defendant leased it, and whose joinder application was pending at the time of the hearing. The Plaintiff opposed, arguing the Defendant was indolent, the land remained registered in his name under Section 26 of the Land Registration Act, and the defence raised no triable issues. The court applied Order 10 Rule 11 and the Court of Appeal's classification of regular versus irregular default judgments in James Kanyiita Nderitu. Holding the judgment regular, it found the delay of about two years inexcusable but concluded the draft defence raised triable issues on ownership and possession. It set aside the judgment on conditions: deemed filing of the defence and counterclaim upon payment of filing fees, service within two days, automatic lapsing on default, costs of the application and throw-away costs to the Plaintiff, and a case management conference on 31/3/2025.

Key legal issues

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01

Whether the regular ex-parte judgment of 31/1/2019 should be set aside

Holding

The judgment was set aside on conditions because the draft defence raises triable issues, notwithstanding the inexcusable delay.

Reasoning

Service was admitted and appearance entered, making the judgment regular; setting aside is discretionary. Although the two-year delay was inexcusable, the draft defence alleges lawful occupation via a lease from Leonard Mbonani Bikangi, who allegedly purchased the suit land from the Plaintiff and whose joinder application was pending but never determined. Those questions of ownership and possession are triable and warrant hearing on the merits, subject to conditions to prevent further delay.

p. 9
02

Costs of the application

Holding

Defendant to pay the Plaintiff's costs plus throw-away costs due to its own negligence.

Reasoning

The application resulted from the Defendant's negligence in failing to file a defence or attend hearing; the court imposed costs to reflect that fault while still granting the substantive relief in the interest of justice.

p. 10

Legal principles established

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  • A regular default judgment may be set aside under Order 10 rule 11 where the intended defence raises triable issues, taking into account reason for default, delay, prejudice and the interest of justice.
  • A defence on the merits means one raising a triable issue, not one that must succeed.

Court orders

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  1. 1.The draft defence and counterclaim shall be deemed to be properly filed upon payment of the prerequisite Court filing fees.
  2. 2.The Defendant shall serve the said defence and accompanying documents within 2 days from the date of this order.
  3. 3.In default of compliance with orders (a) and (b), the order vacating the ex-parte judgment shall automatically lapse without further reference to the Court.
  4. 4.The Defendants shall pay the Plaintiffs the costs of this application together with throw away costs.
  5. 5.The matter be set down for case management conference on priority basis on 31/3/2025.
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mshanga & another v Group) Company Limited & another (Environment & Land Case 245 of 2017) [2025] KEELC 1004 (KLR)", Case Analysis (2025). ELC 245 of 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1004/eng@2025-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.