Koskei v Koskei (Environment and Land Appeal E006 of 2025) [2026] KEELC 752 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default land judgment, ruling a son cannot be evicted from family land without ever being heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant gave a sufficient and reasonable explanation for the delay in applying to set aside the exparte judgment
The appellate court found the explanation - unawareness of the hearing date due to counsel holding brief failing to report back, and reconciliation with the respondent while nursing him in illness - reasonable, and held the trial court erred in finding the delay inordinate.
The court found no evidence that the appellant was served with the hearing notice for the judgment date or notice of entry of judgment. The explanation that a hold-brief counsel failed to relay the adjourned hearing date, coupled with the un-disputed claim that father and son had mended fences and the appellant was caring for his ailing father, was held reasonable. The trial court's finding of inordinate, unexplained delay was therefore erroneous.
Whether the intended defence raised triable issues such that the exparte judgment ought to have been set aside
Yes. The appellant's allegation that he and his family had lived on the suit land since 2004 and faced eviction so the respondent could sell it raised a triable issue requiring ventilation.
The court held that a defence with triable issues need not succeed at trial; it need only raise a reasonable defence. The appellant's claim of long occupation since 2004 and that the respondent wished to evict the family to sell the land raised such an issue, and the trial court ought to have considered it even if the delay explanation failed. Eviction without a hearing would offend natural justice.
Whether the exparte judgment of 25th April 2023 was a regular or irregular judgment and whether it could be set aside under Order 12 Rule 7
The judgment was regular (the defendant had filed a defence and attended court on other occasions), but the court retained discretion under Order 12 Rule 7 to set it aside upon sufficient cause.
Because the defendant had entered appearance and filed a defence, the judgment was regular. However, the discretion under Order 12 Rule 7 and the court's inherent powers under Section 3A of the Civil Procedure Act is wide, intended to prevent injustice from excusable mistake or inadvertence, and the absence of evidence of service of the hearing notice for judgment date weighed in favour of setting it aside.
Who should bear costs of the appeal
Costs follow the event under Section 27 of the Civil Procedure Act; the appellant as the successful litigant was awarded costs of the appeal.
Section 27 of the Civil Procedure Act gives the court discretion to award costs to the successful litigant. Since the appeal succeeded and the application to set aside was allowed, the appellant, as successful litigant, was awarded the costs of the appeal.
Legal principles established
#- A regular exparte judgment may be set aside where the defendant shows sufficient cause such as an excusable mistake, inadvertence or accident, and where the intended defence raises triable issues.
- A defendant should not be punished for the mistake or blunder of his advocate where the blunder deprived him of a hearing.
- The discretion to set aside an exparte judgment exists to avoid injustice, not to impose discipline on a litigant.
- An appellate court will not interfere with the exercise of judicial discretion by an inferior court unless the decision is clearly wrong or rests on a misdirection.
Court orders
#- 1.The Notice of Motion Application dated 26th September 2024 is allowed entirely in terms of prayer No (1) - setting aside the exparte Judgment entered on 25th April 2023
- 2.The appellant is directed to set down the Defence hearing within 30 days from the date of the ruling
- 3.The suit to be concluded within 60 days after the defence hearing
- 4.NAROK CMELC NO. 40 OF 2019 remitted back to Narok Chief Magistrates Court for hearing of the appellant/Defendant's defence
- 5.The defence to be heard by any other trial magistrate other than Hon. H. M. Nyaberi (CM)
- 6.The appellant awarded costs of the appeal
- 7.Parties encouraged to attempt settlement out of court through Alternative Justice System (AJS) or Court Annexed Mediation (CAM) pursuant to Article 159(2)(c) of the Constitution
- On appeal from
- Narok Chief Magistrate's Court (Environment and Land)
- Narok CMELC NO. 40 of 2019
- Jurisdiction invoked
- First appeal from the Magistrate's Court under Sections 65 and 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koskei v Koskei (Environment and Land Appeal E006 of 2025) [2026] KEELC 752 (KLR)", Case Analysis (2026). Narok CMELC No. 40 of 2019 (Memorandum of Appeal dated 27th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/752/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.