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ELCPartially AllowedSiakago MCL & E Case No. 59 of 2019 (Appeal)· [2025] KEELC 6008 (KLR)

JKK v AMI & another (Environment and Land Appeal E019 of 2022) [2025] KEELC 6008 (KLR)

High Court of Kenya
11 September 2025
KBK. BOR
1,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court cancelled a land refund judgment because a woman's forgery defence was ignored, sending the case back for a full hearing.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon E. Wasike, Principal Magistrate, delivered on 25/3/2021 in Siakago MCL & E Case No. 59 of 2019, in which the 1st Respondent, AMI, obtained a refund of Kshs. 380,000/= paid under two land sale agreements with the 2nd Respondent, DMM, a land vendor, and the Appellant, JKK, DMM's wife, in whose name the suit land was registered. Interlocutory judgment was entered against the Appellant on 21/6/2019 as she neither entered appearance nor filed a defence in time; she later entered appearance, filed a defence on 26/1/2021 denying execution of the agreements and alleging forgery, and applied to set aside the ex parte judgment, unsuccessfully. On appeal, the Appellant complained she was condemned unheard, was never served, and that the trial court ignored her defence. The court applied CMC Holdings Limited v Nzioki, holding that in setting aside ex parte judgments the court must consider both the reason for default and whether a reasonable defence raising triable issues exists. Reviewing the trial judgment and the ruling of 27/1/2022, the court found the trial court never addressed the defence on record or assessed its merit; the allegations of forgery and lack of consent raised substantial triable issues, and the failure to evaluate them amounted to a misdirection. The court set aside the trial judgment, remitted the matter to the Magistrate's Court for a fresh trial, and awarded the 1st Respondent the costs of the appeal, to be borne by the 2nd Respondent.

Key legal issues

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Whether the trial court misdirected itself by failing to consider the Appellant's defence when it declined to set aside the ex parte judgment

Holding

The trial court erred by not addressing the Appellant's defence filed on 26/1/2021 or assessing its merit; the defence raised substantial triable issues, and its omission was a misdirection justifying setting aside the judgment.

Reasoning

Reviewing both the trial judgment and the ruling of 27/1/2022, the court found the trial court never addressed the defence on record, which denied execution of any sale agreement and alleged forgery of the 18/1/2017 agreement. Applying CMC Holdings Limited v Nzioki, such allegations constituted triable issues that had to be assessed before entering or maintaining an ex parte judgment.

p. 3

Legal principles established

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  • In an application for setting aside an ex parte judgment, the court must consider both the reasons for the default and whether the applicant has a reasonable defence raising triable issues.
  • A trial court's failure to evaluate a filed defence raising triable issues amounts to a misdirection warranting setting aside of the judgment.

Court orders

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  1. 1.The judgment of the trial court is set aside
  2. 2.The matter is remitted back to the Magistrate's Court for a fresh trial
  3. 3.The 1st Respondent is awarded the costs of the appeal to be borne by the 2nd Respondent
On appeal from
Principal Magistrate's Court at Siakago
Siakago MCL & E Case No. 59 of 2019 - AMI v DMM and JKK
Jurisdiction invoked
First appeal from the Magistrate's Court (magistrates' courts appellate jurisdiction)

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, "JKK v AMI & another (Environment and Land Appeal E019 of 2022) [2025] KEELC 6008 (KLR)", Case Analysis (2025). Siakago MCL & E Case No. 59 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6008/eng@2025-09-11

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