1. The Appellant was the Defendant in Bungoma MELC Case No. E008 of 2024, in which the subordinate court delivered judgment in favour of the Respondent on 16/08/2024. Pursuant to that judgment, the Appellants filed a Notice of Motion dated 09/09/2024, which the court subsequently dismissed through its ruling delivered on 31/10/2024.
2. The application sought to set aside the default judgment delivered on 16/08/2024 and for leave to be granted to have their defence filed out of time. The application was supported by the affidavit of the Appellant filed on 09/09/2024 wherein the Appellant deposed that he was the beneficial owner of Plot No. Chepyuk Phase 1 109/1062 which he has been in possession of. He argued that he was served with the pleadings of the primary suit on 23/05/2024 which was 4 months after the date of filing and that the orders of 28/02/2024 and subsequent judgment were therefore fraudulently obtained.
3. The Respondent filed a replying affidavit in opposition thereto sworn on 30/09/2024 in which he deposed that the Applicant was properly served with the pleadings but failed to enter appearance leading to the default judgment.
4. Upon inter-partes hearing of the said application, the trial court dismissed the Appellants application with costs for lack of merit. Dissatisfied with the said ruling the Appellant preferred the current appeal on the following grounds;
a) The learned trial Magistrate erred in law when she ignored the cardinal principle of natural justice which requires that no person should be condemned unheard.
b) The learned trial Magistrate’s decision was not fair and just in that being a land dispute the appellant should not be precluded from participating in the hearing of the dispute.
c) The learned trial Magistrate erred in fact when she failed to take into account the fact that the appellant had expressed his desire and intention to be heard in the dispute by being allowed to file his defence upon setting aside the judgment.
d) The learned trial Magistrate erred in law and fact when she did not take into account the fact that the failure to file statement of defence was because the defendant was never served with summons, pleadings and exhibits which would enable him to prepare appropriate defence and response to the interlocutory application.
e) The learned trial magistrate erred in principle when she failed to consider the appellant/ defendant’s draft defence which showed that the plaintiff’s claim was either mistaken or fraudulent as it relates to a parcel of land identified by a different plot number from that of the appellant/ defendant.
f) The learned trial Magistrate erred in law and fact when she failed to consider that any prejudice that the Respondent would suffer for the delay in the conclusion of his case by having it heard on merits could adequately be compensated by costs thrown away.
g) The Learned trial Magistrate erred in law when she elevated to the level of a criminal offence the blunders deviations and procedural lapses which did not occasion miscarriage of justice to the respondent to sacrifice the court’s fundamental duty to justice between the parties upon the merits of the dispute.
h) The Learned trial Magistrate missed the impute of Article 159(2)(d) of the Constitution of Kenya 2010, in dispute resolution.
i) The speed with which the interlocutory application and suit were heard and determined in under 12th months was record breaking and commendable but curious as the hurried course taken by the court led to a decision on an emotive dispute in an area with serious insecurity being reached behind the back of the appellant/defendant.
5. The Appellant seeks orders allowing the appeal, setting aside the trial Magistrate’s dismissal of the application dated 09/09/2024 and substituting it with an order allowing that application, together with costs of the appeal.
6. When the matter came up for directions, the parties agreed to have the appeal canvassed by way of written submissions. The Appellant filed submissions dated 28/11/2025 which this court has taken into consideration.
Analysis and determination.
7. I have exhaustively considered the record of appeal, the ruling of the trial court, the appellant’s grounds of appeal, the submissions by the parties as well as the relevant law. In reviewing decisions of this nature from the trial court, this court considers the standard set in Selle vs. Associated Motor Boat Co. Limited (1968) EA 123 where on a first appellate court’s duty to reappraise the evidence and come up with its own independent evaluation and conclusions is applicable.
8. The sole issue for determination is whether the trial court erred in dismissing the appellant's application for setting aside the ex parte judgment entered in default of appearance and defence. This situation is essentially governed by Order 10, Rule 11 of the Civil Procedure Rules. It provides for the setting aside of a judgment entered under Order 10. The court is guided by the principles in James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR where the court stated that;
“We shall first address the ground of appeal that faults the learned Judge for setting aside the default judgment and consequential orders in the circumstances of this case. From the onset, it cannot be gainsaid that a distinction has always existed between the default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearances or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion, in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer, whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v Shah (supra), Patel v E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v Nzioki [2004] 1 KLR 173).
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”
9. I align fully with the trial court’s conclusion that the Appellant failed to demonstrate any credible, let alone compelling, grounds to warrant the exercise of the court’s discretion in his favour. The Appellant admitted that he was duly served with the pleadings on 25/05/2024. The matter thereafter proceeded to hearing on 25/05/2024, a period of nearly two months yet the Appellant took no procedural steps whatsoever to file a defence, or otherwise participate in the suit.
10. This neglect is rendered even more untenable by the fact that the Appellant had competent counsel already on record who was clearly so appointed since the Applicants had been served with summons and pleadings, as evidenced by the Memorandum of Appearance filed on 15/03/2024. No explanation, plausible or otherwise, was tendered to account for the complete inactivity by both the Appellant and his advocate during the pendency of the suit. The failure to engage with the litigation cannot be attributed to inadvertence, procedural ambiguity, or any obstruction by the Respondent.
11. In light of the foregoing, this Court finds no legal or factual basis to impugn the trial court’s reasoning. The Appellant’s conduct fell far short of the diligence required of a litigant seeking equitable or discretionary relief. He did not satisfy the threshold for intervention, and the trial court was correct to find that the orders sought were wholly unsupported by any tangible justification.
12. Accordingly, I find that the appeal herein lacks merit and the same is hereby dismissed with no orders as to costs for the reason that the Respondent did not participate in this appeal.
13. Orders accordingly.
DATED SIGNED AND DELIVERED VIRTUALLY at EMBU this 12TH day of FEBRUARY, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. Appellant/Advocate-absent.
2. Respondent/Advocate-absent.
3. Diana Kemboi-C/A
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