Daniel Rukaria Iburi v Plaintiffs/Respondents (suit property registered in the name of the Applicant on trust for himself and the Respondents)
The bottom line
#The Environment and Land Court in Meru dismissed a man's attempt to overturn a judgment for the second time, ruling you cannot get the same second chance twice.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to the court's equitable discretion to set aside the judgment and grant leave to defend
The Applicant was not deserving of the discretion: he had previously obtained a set-aside of a default judgment with liberty to file a defence, failed to comply, had the liberty deemed lapsed on 17/09/2025, and had not varied or set aside those orders.
The court traced the procedural history: a default judgment was set aside on 24/06/2025 with timelines for filing a defence; the Applicant did not file a defence; on 17/09/2025 his counsel admitted non-compliance and the court deemed the leave lapsed and fixed formal proof. Those orders remained intact. A fresh application for the same relief was res judicata, and the Applicant's conduct showed a scheme to delay, obstruct or defeat due process contrary to sections 1A and 1B of the Civil Procedure Act.
Whether the mistake of counsel excuses the default
It does not. The Applicant did not document any diligent effort of his own to ensure compliance with the court's directions.
Relying on HABO Agencies Limited v Wilfred Odhiambo Musingo, Tana Teachers' Cooperative And Credit Society Limited v Andriano Muchiri and Said Swelen Ghethan Saanun, the court held that mistakes of advocates cannot always be visited upon litigants, but a party must show follow-up efforts. The Applicant offered no such evidence and was found to have been economical with the truth, attempting to mislead the court.
Prejudice to the Respondents if the application were granted
The Respondents would suffer prejudice; the dispute concerns land held on trust and the Applicant's failure to discharge his trustee obligations has subjected them to undue anxiety and risk of deprivation.
The suit property was registered in the Applicant's name on trust for himself and the Respondents. The Applicant's default and the resulting delay expose the Respondents to denial and deprivation. Expeditious disposal is mandated by Article 159(2)(b) of the Constitution; justice shall not be delayed.
Legal principles established
#- The court's discretion to set aside a default judgment or ruling is unfettered but must be exercised judiciously and not whimsically or arbitrarily.
- The discretion to set aside a judgment will not be exercised to assist a party who has deliberately sought to obstruct or delay the cause of justice.
- A litigant seeking condonation or discretionary relief must tender a plausible, cogent, compelling and credible explanation for the default and must not mislead the court.
- Even where a party has retained counsel, the litigant retains an obligation to follow up the case and exercise due diligence.
- A second application seeking the same liberty already granted and later declared lapsed is barred by res judicata under Section 7 of the Civil Procedure Act.
Court orders
#- 1.The Application dated 13.11.2025 be and is hereby dismissed.
- 2.Costs of the Application be and are hereby awarded to the Plaintiffs/Respondents.
- 3.The Cost in terms of clause [ii] above shall be agreed upon and in default be taxed by Deputy Registrar.
- Jurisdiction invoked
- Inherent powers under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11, Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Rukaria Iburi v Plaintiffs/Respondents (suit property registered in the name of the Applicant on trust for himself and the Respondents)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/140/eng@2026-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.