[2025] KEELC 5275 (KLR)

[2025] KEELC 5275 (KLR)

The appellate court found that the trial court did not err in setting aside the ex parte judgment in its ruling of 9th April 2024, as the respondent's affidavit sufficiently outlined the nature of his defence and the court properly exercised its discretion in the interest of justice, compensating the appellant with...

Source-derived case information.

Citation
[2025] KEELC 5275 (KLR)
Parties
Appellant: Robert Makaa Murundo; Respondent: John Henry Amugune
Court
Environment and Land Court
Court Station
Environment and Land Court at Vihiga
Jurisdiction
Kenya
Judgment Date
10 July 2025
Case Number
Environment and Land Appeal E012 of 2024
Procedural Posture
Environment and Land Appeal / First Appeal, Judgment
Outcome
Appeal No. E012 of 2024 dismissed; Appeal No. E016 of 2024 allowed; ruling of 27th August 2024 set aside; costs of Appeal No. E016 of 2024 awarded to the appellant.
Judges
E Asati
Legal Topics
Setting Aside Ex Parte Judgment, Service of Process, Affidavit Requirements, Proprietary Interest Disputes
Source Language
english
Land and Property Civil Procedure Setting Aside Ex Parte Judgment Service of Process Affidavit Requirements Proprietary Interest Disputes

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Summary, issues, holding and outcome

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Parties

Robert Makaa Murundo

Appellant

John Henry Amugune

Respondent

Procedural Posture

Environment and Land Appeal / First Appeal, Judgment

Legal Issues

  1. 1 Whether the respondent demonstrated sufficient grounds for setting aside the ex parte regular judgment.
  2. 2 Whether the affidavits sworn by the respondent in support of the application were proper and compliant with legal requirements.
  3. 3 Whether the trial court erred in granting the orders in the ruling read on 27th August 2024 while judgment subsisted.

Ratio Decidendi

The appellate court found that the trial court did not err in setting aside the ex parte judgment in its ruling of 9th April 2024, as the respondent's affidavit sufficiently outlined the nature of his defence and the court properly exercised its discretion in the interest of justice, compensating the appellant with thrown away costs. However, the trial court erred in its subsequent ruling of 27th August 2024 by allowing the respondent to file a defence and set the suit down for hearing while the ex parte judgment had already been reinstated due to the respondent's non-compliance with the earlier orders. The trial court failed to recognize that it was functus officio and that the judgment...

Court Disposition

Appeal No. E012 of 2024 dismissed; Appeal No. E016 of 2024 allowed; ruling of 27th August 2024 set aside; costs of Appeal No. E016 of 2024 awarded to the appellant.

Orders

  • Appeal No. E012 of 2024 is dismissed.
  • Appeal No. E016 of 2024 is allowed.