https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1139

Kenya Agricultural Research Institute v Kangwana (Civil Appeal 114 of 2020) [2026] KECA 1139 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1139 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 114 of 2020 MS Asike-Makhandia, M Ngugi & LK Kimaru, JJA June 12, 2026 Between Kenya Agricultural Research Institute Appellant and Jared Benson Kangwana Respondent (Being an appeal from the ruling and order of the Environment and Land Court at Kisii (Onyango, J.) delivered on 23rd April, 2020 in ELC Case No. 215 of 2013) Judgment 1.The respondent instituted proceedings against the appellant before the Environment and Land Court at Kisii, by a plaint dated 13th May, 2013. It was the respondent’s case that he was the duly registered proprietor of all that piece or land parcel known as L.R. No. 17666, situated within Kisii Municipality, Kisii County, measuring approximately 2.032 Ha, (the suit property) by virtue of a grant of lease from the Government of Kenya. The respondent urged that the leasehold was for a term of ninety-nine (99) years with effect from 1st September, 1992. 2.The respondent averred that sometime in April, 2013, after evicting squatters from the suit property pursuant to court orders issued in Kisii High Court Civil Case No. 90 of 2012, he engaged the services of a surveyor to identify the beacons for purposes of fencing off the suit property, as he intended to commence construction thereon. The respondent further averred that the appellant’s employees and/or agents prevented his surveyor from carrying out the intended work, claiming that the suit property belonged to the appellant. The respondent prayed for an order of permanent injunction to restrain the appellant, its agents, and/or servants from barring, interfering with, or in any manner whatsoever infringing upon the respondent’s ownership and development of the suit property. 3.The appellant filed a statement of defence dated 21st June 2013.The appellant denied that the respondent was the registered proprietor of the suit property and put the respondent to strict proof thereof. The appellant averred that in the event the respondent held a grant of lease, which was denied, the same was obtained irregularly and illegally and ought to be cancelled. The appellant deposed that the suit property, together with other parcels of land in the area, was subject of investigation as per the report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Ndung’u Report), which the appellant annexed to its pleadings. 4.The appellant further denied that any developments were being undertaken on the suit property as it had registered a caution against the title of the suit property, which was still in force at the time of filing the suit. The appellant urged the Court to dismiss the respondent’s suit and make a declaration that the appellant was the rightful owner of the suit property. The appellant further sought an order of permanent injunction to restrain the respondent from interfering in any way with the appellant’s quiet possession of the suit property. 5.The suit was scheduled for hearing on 14th November, 2018.However, when it came up for hearing, only the respondent and his advocate were present, there being no appearance by the appellant or its counsel. Upon the respondent’s application, the court permitted the hearing to proceed ex-parte. By a judgment dated 24th May, 2019, Mutungi J. entered judgment in favour of the respondent. 6.The appellant, by a notice of motion dated 2nd December, 2019, sought to set aside the ex-parte proceedings and the subsequent judgment entered therein dated 24th May, 2019. The appellant asked the court to direct that the suit be re-heard inter-parties on merit, and urged further that the appellant be given an opportunity to ventilate its defence. 7.The application was premised on the grounds set out therein and supported by an affidavit sworn by the appellant’s legal officer on the same date. The appellant averred that its former advocates on record, Messrs Keengwe and Co. Advocates, failed to notify them of the hearing date scheduled before the court, thereby causing the matter to proceed ex-parte, due to non-attendance by the appellant. The appellant further faulted its advocates for failing to adequately prepare for the hearing by neglecting to file the appellant’s list of documents and witnesses’ statements. 8.The appellant maintained that its failure to attend the scheduled hearing was occasioned by inadvertence, having been caused by the omission and/or mistake of its advocate. The appellant argued that it had a valid defence to the respondent’s suit, and that it ought to be given an opportunity to ventilate the same before the trial court. The appellant held the view that it would suffer irreparable loss if the orders sought were not granted, and that the respondent did not stand to suffer any harm or prejudice if the orders sought are granted. 9.In the supporting affidavit sworn by Patricia Ngutu, the appellant’s legal officer, she averred that the appellant’s advocate on record before the trial court failed to communicate to the appellant the developments relating to the suit before the trial court. She deponed that sometime in November, 2019, she was undertaking some independent research on the Kenya Law Reports website when she came across the ex-parte judgment of the trial court against the appellant. She learnt that the judgment was entered due to the non-attendance of the appellant. Upon this realization, the appellant instructed the firm of Messrs Ochieng’ Advocates to peruse the file and confirm the status. She was informed that indeed a decree had been issued. She deponed that the appellant was desirous of ventilating its defence against the respondent’s suit, and that the mistake of counsel should not be visited upon the parties. 10.The application, which was strenuously opposed by the respondent, was canvassed by way of written submissions. The learned Judge (Onyango, J.), in a ruling dated 23rd April, 2020, dismissed the appellant’s application. The learned Judge found that even though the appellant’s advocate failed to apprise the appellants of the progress in the suit before the trial court, there was no evidence to show that the appellant made any effort on its part to communicate with its advocate. The learned Judge further held that upon perusal of the appellant’s statement of defence, the appellant had not raised any triable issues. The learned Judge observed that the appellant’s application was filed six months after delivery of the ex-parte judgment, and that the respondent would suffer prejudice if the application was allowed, as he would not be able to enjoy the fruits of his judgment. 11.The appellant, aggrieved by this decision, lodged the present appeal before this Court. In its memorandum of appeal dated 26th August, 2020, the appellant proffered six (6) grounds of appeal. The appellant faulted the learned Judge for: failing to allow its application, when the appellant had raised sufficient grounds for exercise of the court’s discretion in its favour by setting aside the ex-parte proceedings and judgment; failing to consider all the evidence on record, thereby reaching an erroneous decision; failing to appreciate the availability of the right of a litigant to amend its pleadings in determining whether the appellant had a reasonable defence; for finding that the appellant had failed to establish that it had a better title to the suit property than the respondent, when matters of ownership could only be best determined upon a full inter-parties hearing; failing to take into account public interest, which overrode the respondent’s private interest; and lastly, for failing to take into account the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act as well as the principles governing setting aside of ex-parte judgments. 12.The appeal was heard by way of written submissions. Mr. Wauna, learned counsel, appeared for the appellant. The appellant argued that the learned Judge erred when she declined to set aside the ex-parte judgment despite the appellant having demonstrated sufficient cause for its non- attendance during the hearing. It was submitted that the hearing proceeded ex-parte on the very first hearing date after the suit had remained pending since 2013, and that neither the appellant nor its counsel attended court due to the omissions on the part of its former advocates, who failed to notify the appellant of the hearing date, and neglected to file the necessary witnesses’ statements and documents, despite leave having been granted by the court. Counsel for the appellant argued that the trial court ought to have exercised its discretion in favour of setting aside the judgment so as to avoid injustice occasioned by counsel’s inadvertence and mistake. 13.Counsel for the appellant further submitted that the learned Judge failed to appreciate that the appellant’s defence raised triable issues, particularly regarding the legality of the respondent’s title to the suit property. He maintained that the suit property was public land and had been irregularly allocated to the respondent, a fact reflected in the Ndung’u Report. He argued that the dispute raised issues of public interest which warranted a full hearing on merits, and that even a single triable issue was sufficient to justify setting aside the ex-parte proceedings. 14.The appellant’s counsel also faulted the learned Judge for failing to consider that no prejudice would have been occasioned upon the respondent had the case been reopened, as interim injunctive orders were already in place protecting the respondent’s interests. It was further argued that the delay of about six months in filing the application to set aside judgment was not unreasonable in the circumstances, and that the court ought to have prioritized substantive justice under sections 1A, 1B, and 3A of the Civil Procedure Act. 15.Lastly, the appellant contended that the trial court improperly elevated the respondent’s private interests over the public interest apparent in the dispute, considering that the appellant was a public institution defending land belonging to the public. The appellant therefore invited us to interfere with the exercise of discretion by the trial court, set aside the impugned ruling, and allow the suit to proceed to hearing on its merits. 16.In rebuttal, Mr. Masese, learned counsel for the respondent, submitted that the learned Judge properly exercised her discretion in declining to set aside the ex-parte judgment, and that an appellate court can only interfere with such discretion if it was shown to have been exercised injudiciously or was based on wrong principles. It was argued that the learned Judge carefully considered the applicable principles governing the setting aside of ex-parte judgments before reaching her decision. 17.The respondent’s counsel further submitted that the appellant had failed to demonstrate sufficient interest in prosecuting its case and was rightly bound by the omissions of its advocate. He maintained that the trial court correctly found that the appellant had not established a basis for setting aside the judgment, particularly because the appellant had not shown that its evidence had been unfairly shut out. 18.It was also argued that the learned Judge properly considered the appellant’s defence and correctly concluded that it did not raise any meritorious or triable issues. Counsel for the respondent maintained that the respondent held a valid title issued by the Government, whereas the appellant was merely a licensee occupying government land, and therefore lacked a superior claim to the suit property. He further argued that the learned Judge thoroughly addressed all the grounds raised before her and supported her findings with relevant legal authorities. He therefore urged us to find that the appeal lacked merit and dismiss it with costs. 19.This being a first appeal, our role as the first appellate Court was well set out in the case of Selle vs Associated Motor Boat Co. Ltd [1968] EA 123 where Sir Clement De Lestang stated that:“This Court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 20.We have considered the record of appeal, the rival submissions by counsel, and the law. In our view, the appeal turns on whether the learned Judge properly exercised her discretion in declining to set aside the ex-parte proceedings and judgment entered against the appellant. 21.An appellate court will not ordinarily interfere with the exercise of discretion by a trial court unless it is demonstrated that the court misdirected itself in law, took into account irrelevant considerations, failed to take into account relevant considerations, acted on wrong principles, or arrived at a decision that is plainly wrong and would occasion injustice. Put differently, interference is justified where the exercise of discretion was injudicious, arbitrary, or resulted in miscarriage of justice. (See Mbogo v Shah [1968] EA 93) 22.The principles governing the setting aside of ex-parte judgments are now settled. The discretion of the court is wide and unfettered, but must be exercised judiciously and in a manner that serves the interests of justice. The primary concern of the court is to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, while at the same time ensuring that a litigant does not deliberately obstruct or delay the course of justice. This Court in Berlin Equipment Ltd & another v Tata Africa Holdings (K) Limited [2026] KECA 100 (KLR) observed as follows:“It is common ground that the jurisdiction under Order 10 rule 11 is discretionary. The rule empowers the court to set aside or vary a default judgment “upon such terms as are just.” The principles guiding the exercise of that discretion are well settled. The discretion exists to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, and is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice, as articulated in the celebrated case, Shah v Mbogo (1967) EA.Where a default judgment is regular, the court ordinarily considers whether the defendant has shown a defence on the merits. A defence on the merits does not mean one that must succeed; it suffices that it raises a triable issue deserving of adjudication at a trial.” 23.From the record, the hearing proceeded ex-parte on 18th March, 2019, in the absence of both the appellant and its advocate. It is not disputed that the appellant’s former advocates failed to notify the appellant of the hearing date. It is also not disputed that the hearing in question was the first hearing date since the institution of the suit in 2013. The appellant explained that it only became aware of the judgment against it several months later upon conducting unrelated independent research on the Kenya Law Reports website. 24.We agree with the learned Judge that a litigant bears a duty to follow up on their case and cannot wholly shift blame to counsel when things go awry. The appellant, being a public institution, ought to have exercised greater diligence in monitoring the progress of litigation affecting land it claims belong to it. The delay of approximately six months before filing the application to set aside the judgment also cannot be said to have been satisfactorily explained in all respects. To that extent, the appellant was not entirely blameless. 25.However, the court’s discretion must ultimately be exercised in a manner that advances substantive justice. We are persuaded that the circumstances of this matter called for a more cautious approach before shutting out the appellant from being heard. The dispute concerns ownership of land alleged by the appellant to be public land that was irregularly alienated to a private individual. The appellant specifically pleaded that the suit property was among parcels identified in the Ndung’u Report to have been irregularly allocated to private individuals. Whether or not those allegations are meritorious is not the issue before us. What is important is that the defence raised weighty and arguable questions touching on the legality of the respondent’s title and the ownership of the suit property. Public interest is in issue. 26.We are satisfied that those questions can only be conclusively and satisfactorily determined upon a full inter-partes hearing. We are unable to agree with the learned Judge’s finding that the appellant’s defence disclosed no triable issues. Even a single bona fide triable issue is sufficient to entitle a party to defend a suit. The question whether the suit property was lawfully allocated, and whether the respondent acquired a valid title thereto, cannot be dismissed summarily without affording parties an opportunity to ventilate the same in a hearing. 27.We are further persuaded that no irreparable prejudice would have been occasioned to the respondent had the suit been reopened for hearing on merit. On the other hand, the effect of declining to grant the application to set aside the ex-parte judgment would permanently shut out the appellant from ventilating its defence in a dispute involving alleged public land. In the peculiar circumstances of this case, the broader interests of justice and public interest tilted in favour of allowing the suit to proceed to hearing on the merit. 28.It has long been held that mistakes of counsel should not, in appropriate circumstances, be visited upon an innocent litigant, particularly where doing so would result in grave injustice. While such mistakes do not automatically entitle a party to relief, we are satisfied that the present appeal falls within the category of cases where the court ought to lean in favour of sustaining a hearing on the merits rather than terminating the dispute on procedural default. 29.In the result, we find that the learned Judge did not properly exercise her discretion in declining to set aside the ex-parte proceedings and the resulting judgment. The appeal is ccordingly allowed. The ruling and order of the Environment and Land Court dismissing the appellant’s notice of motion dated 2nd December, 2019, are hereby set aside. In place thereof, we substitute an order allowing the said application and setting aside the ex-parte proceedings and judgment delivered on 24th May, 2019. 30.The suit shall be heard afresh on merit before a judge of the Environment and Land Court other than Onyango, J. 31.Given the circumstances leading to the ex-parte proceedings, we direct that the appellant shall bear thrown away costs before the trial court. Each party shall bear its own costs of this appeal. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.......................................JUDGE OF APPEAL MUMBI NGUGI.......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALI certify that this is a true copy of original.SignedDeputy Registrar