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ELCStruck OutKilgoris ELC Appeal (Memorandum of Appeal dated 12th January 2025) — appeal from Kilgoris ELC Case No. E048 of 2023· [2026] KEELC 4488 (KLR)
Korir v Maina & another (Land Case Appeal E006 of 2025) [2026] KEELC 4488 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#If you lose by default judgment in Kenya, apply to the trial court to set it aside first — jumping straight to appeal will get your appeal struck out.
What this practically means
#Executive summary
#Nelson Korir appealed against the judgment and decree of Hon. W.C Waswa, Senior Magistrate, delivered on 23rd January 2025 in Kilgoris ELC Case No. E048 of 2023, seeking to have that judgment set aside or quashed, a retrial before another court, and costs. The appeal proceeded by written submissions. Counsel for the appellant, Ms. Linda Wekesa, argued that the defence raised triable issues and that the trial magistrate erred in declining to set aside the default judgment, citing Patel v E.A Cargo Handling Services, Chemwolo v Kubended and James Kanyita Nderitu v Marios Philotas Ghikas. The respondent, through Kiprotich Roberts Advocates, submitted that the defendant was served with the plaint on 19th July 2023 yet filed a defence only in December 2024, and cited Mbogo v Shah on restraint in interfering with judicial discretion. The court confirmed common ground that the judgment was an exparte but regular default judgment, that the appellant acted in person at trial, and that a defence was filed without leave after the matter had been certified to proceed by formal proof. Framing four issues, the court held that an application to set aside a regular default judgment must first be made to the trial court under Order 10 Rule 11, and only the resulting ruling is appealable. Having bypassed the trial court, the appellant's appeal was incompetent. The court struck out the appeal without considering its merits and awarded costs of the appeal to the appellant.
Key legal issues
#01
Whether the appeal against a regular default judgment was competent absent a prior application to set aside before the trial court
Holding
The appeal was incompetent and was struck out without consideration of its merits
Reasoning
The court found the judgment appealed against was a regular default judgment, the appellant having been duly served. Under Order 10 Rule 11, such a defendant must first apply to the trial court to set aside the default judgment; only the ruling on that application is appealable. The appellant bypassed the trial court, leaving no exercise of discretion for this court to review.
p. 3
Legal principles established
#- A default judgment entered after due service is a regular default judgment, and an application to set it aside must first be made to the trial court under Order 10 Rule 11; a direct appeal against such a judgment without such an application is incompetent
Court orders
#- 1.The Appeal is struck out and the court shall not dwell on its merits
- 2.Costs of the Appeal to be borne by the Appellant
- On appeal from
- Magistrates' Court at Kilgoris (Hon. W.C Waswa)
- Kilgoris ELC Case No. E048 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court decision (appeal against judgment and decree of the Magistrates' Court at Kilgoris)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Korir v Maina & another (Land Case Appeal E006 of 2025) [2026] KEELC 4488 (KLR)", Case Analysis (2026). Kilgoris ELC Appeal (Memorandum of Appeal dated 12th January 2025) — appeal from Kilgoris ELC Case No. E048 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4488/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.