Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Le John Enterprises & 3 others (Environment and Land Case E014 of 2023) [2025] KEELC 6906 (KLR)
The bottom line
#A Kenyan land court set aside a default judgment because the defendants' lawyer's departure caused the delay and their draft defence raised real issues for trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the default (interlocutory) judgment and the formal proof proceedings of 14th October 2024 should be set aside
Yes. The reasons advanced for the default (counsel handling the matter left the firm without a handover) were plausible, and the draft defence raised triable issues; the preliminary objection was without merit and the application was allowed subject to throw away costs
The court applied the unconditional discretion in Chemwolo, holding that the explanation for the failure to file a defence (an advocate's inadvertence after an associate left the firm) was plausible and that mistakes of advocates should not be visited on clients. Applying Patel, the draft defence raised triable issues such as ownership of the suit property, limitation, and capacity of the estate to be sued, warranting hearing on the merits.
Whether the Preliminary Objection dated 4th February 2025 should strike out the application
The Preliminary Objection was without merit and was dismissed
Having found that the defendants' explanations were plausible and that triable issues existed, the court concluded that the procedural objections (lack of authority under Order 1 Rule 13, absence of grant for the deceased 2nd Defendant, absence of a formal interlocutory judgment) could not defeat the discretion to set aside the default judgment so as to allow hearing on the merits.
Legal principles established
#- The court's discretion to set aside default judgment is unconditional, and where judgment was obtained regularly the applicant must show a defence on the merits (a triable issue); the reason for the default is only one matter the court considers
- A defence on the merits need not be a defence that must succeed; it suffices that it raises a triable issue fit for trial
Court orders
#- 1.The interlocutory judgment entered against the 1st and 2nd Defendants and the formal proof hearing held on 14th October 2024 are set aside
- 2.The 1st and 2nd Defendants to file their defence to the suit within 21 days from the date of the Ruling
- 3.The 1st and 2nd Defendants to pay the plaintiff throw away costs of Kshs.15,000/= within 21 days from the date of the Ruling
- Jurisdiction invoked
- Inherent jurisdiction of the court under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Le John Enterprises & 3 others (Environment and Land Case E014 of 2023) [2025] KEELC 6906 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6906/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.