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ELCPartially AllowedVihiga ELC Appeal No. E012 of 2024 (Consolidated with Vihiga ELC Appeal No. E016 of 2024)

Murundo v Amugune (Environment and Land Appeal E012 of 2024) [2025] KEELC 5275 (KLR)

Environment and Land Court
10 July 2025
3,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who ignored court deadlines lost his second chance: once a default clause lapsed, the ex parte judgment stood and no further defences were allowed.

What this practically means

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Executive summary

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This is a consolidated first appeal (Vihiga ELC Appeal Nos. E012 of 2024 and E016 of 2024) against two rulings of the trial magistrate in a trespass suit over land parcel E. Bunyore/Ebunangwe/2586. The ex parte judgment of 28th August 2022 granted the appellant a permanent injunction. The Respondent's application of 28th July 2023 to set aside the judgment was allowed on 9th April 2024, subject to a default clause lapsing the setting-aside order upon non-compliance. The Respondent defaulted; the judgment was reinstated; yet on 27th August 2024 the trial court gave the Respondent a further chance to pay thrown away costs, file a defence, and set the suit down for hearing. Asati J dismissed Appeal No. E012 of 2024, holding the trial court properly exercised its discretion: the absence of an annexed draft defence was not fatal since the affidavit disclosed a triable defence concerning fraudulent transfer of a deceased's land, and the appellant was compensated with thrown away costs. However, Appeal No. E016 of 2024 was allowed: the default clause had lapsed the setting-aside order and reinstated the judgment, and the trial court erred in permitting a defence and trial in the subsistence of that judgment - a matter of substance, not form - and the Respondent had already had sufficient opportunity. The ruling of 27th August 2024 was set aside, with costs of that appeal to the Appellant. The Respondent filed no submissions despite service.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the Respondent had demonstrated and proved grounds for setting aside of the judgement
  2. 2.Whether or not the Afidavits sworn by the Respondent in support of the application were proper
  3. 3.Whether or not the trial court erred in granting the orders in the ruling read on 27th August 2024
  4. 4.Costs of the appeal

Key legal issues

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01

Whether the Respondent demonstrated grounds for setting aside the ex parte judgment

Holding

The appeal against the ruling of 9th April 2024 fails. The trial court properly exercised its discretion: although the Respondent was properly served and had no plausible explanation for non-filing, the nature of a triable defence could be discerned from the supporting affidavit, and the appellant was compensated with thrown away costs.

Reasoning

The trial court found service proper with a return of service on record. The applicant's claim of non-service was untrue. However, the supporting affidavit disclosed a triable defence concerning proprietary interest in the suit land, alleging fraudulent self-transfer of a deceased person's land without letters of administration. Annexation of a draft defence is desirable but not mandatory; the discretion was also informed by Articles 50 and 159 of the Constitution, and the appellant was compensated by thrown away costs.

p. 6
02

Whether the trial court erred in the ruling of 27th August 2024 reviving the Respondent's opportunity to defend

Holding

Appeal No. E016 of 2024 succeeds. Once the Respondent defaulted on the orders of 9th April 2024, the default clause operated and the ex parte judgment was reinstated. The trial court erred in allowing the filing of a defence and setting down the suit for hearing while the judgment subsisted, and the Respondent had already had sufficient opportunity.

Reasoning

The ruling of 9th April 2024 contained a default clause lapsing the setting-aside order upon non-compliance. The Respondent failed to file his defence or pay thrown away costs within the timelines, reinstating the judgment. The trial court's later ruling treated the lapse as a mere matter of form, but proceeding to defence and trial in the subsistence of a judgment is a matter of substance that could invalidate any ensuing trial. The court also failed to address the restored judgment or the Respondent's non-compliance.

p. 7
03

Whether the Respondent's affidavits were defective for failure to conform to section 5 of Cap 15 and improper annexures

Holding

Not determinative; the court did not uphold this ground, finding instead that the supporting affidavit's contents sufficiently disclosed the defence despite the missing draft defence annexure.

Reasoning

The appellant argued, relying on CMC Motors Group Limited v Bangeria Arap Korir, that the affidavits were defective and annexures improperly marked. The court held that while annexing a draft defence is desirable, its absence is not fatal if the defence's nature appears in the affidavit and supporting documents. The missing annexure JHA-1 was noted, but the affidavit still enabled assessment of the triable defence.

p. 6

Legal principles established

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  • Failure to annex a draft defence to an application to set aside an ex parte judgment is not fatal where the nature of the defence is outlined in the supporting affidavit
  • A court cannot direct a defendant to file a defence and set a suit down for hearing while a reinstated ex parte judgment subsists following breach of a default clause
  • Explanation tendered for non-filing of pleadings and non-appearance is a factor in setting aside ex parte judgments

Court orders

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  1. 1.Appeal No. E012 of 2024 is dismissed
  2. 2.Appeal No. E016 of 2024 is allowed and the ruling dated 27th August 2024 is set aside
  3. 3.Costs of appeal No. E016 of 2024 are awarded to the Appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Vihiga Principal Magistrate's Court (ELC Case No. 56 of 2021)
56 of 2021
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court rulings (two appeals consolidated by directions given on 12th March 2025)
Consolidated with
Vihiga ELC Appeal No. E016 of 2024

Relief refused

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Appeal No. E012 of 2024 challenging the ruling dated 9th April 2024 setting aside the ex parte judgment

The trial court did not err; grounds for setting aside the ex parte judgment had been demonstrated, and failure to annex a draft defence is not fatal

p. 6

Costs

Costs of appeal No. E016 of 2024 awarded to the Appellant; costs of appeal No. E012 of 2024 not addressed (appeal dismissed).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court finds that appeal No. E016 of 2024 has merit and allows it. The ruling dated 27th August 2024 is hereby set aside. Costs of appeal No. E016 of 2024 are awarded to the Appellant.
p. 7Final orders/disposition on the second appeal
While it is desirable to have a draft defence annexed to the application which draft defence should outline the particulars of the applicant's defence to the claim, failure to do so is not fatal as the nature of the defence may still be outlined in the afidavits and documents in support of the application.
p. 6Effect of failure to annex draft defence to setting-aside application
I find that the trial court erred in making an order allowing the Respondent to file defence and set the suit down for hearing while the ex parte regular judgement was still subsisting.
p. 7Error of trial court in reinstating defence after judgment restored
In default of any of the orders above made, the order setting aside the ex- parte regular judgement shall lapse and the plaintifi shall be at liberty to proceed with this suit.
p. 6Default clause in ruling dated 9th April 2024
One of the factors to consider in an application seeking to set aside an ex parte judgment is the explanation tendered for not filing pleadings and non-appearance/attendance within the time provided by law.
p. 5Test for setting aside ex parte judgments

Issues in the judgment

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minor

Judgment contains internally inconsistent dates: the ex parte judgment is said to have been delivered on 28th August 2022 in one passage and on 23rd September 2022 in the memorandum of appeal, and the trial court's findings on the transfer are dated after the burial and impossible dates

minor

The Bill of Costs is described as dated 18th December 2022 while the judgment was delivered on 28th August 2022 and execution commenced after the lapse of the setting-aside order in 2024

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, "Murundo v Amugune (Environment and Land Appeal E012 of 2024) [2025] KEELC 5275 (KLR)", Case Analysis (2025). Vihiga ELC Appeal No. E012 of 2024 (Consolidated with Vihiga ELC Appeal No. E016 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5275/eng@2025-07-10

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