https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4008

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC APPEAL NO. 16 OF 2017*** ***ROBERT MUYANI MUNJA ………………………………….. APPELLANT*** ***VERSUS*** ***EDWIN SIRONKA OLOOLCHIKE ………………………. RESPONDENT*** (***Being an Appeal against the orders and ruling of the SENIORPRINCIPAL MAGISTRATE, Narok the Honourable T. Gesore delivered on 9th May 2017 in Narok CMCC Civil Case No. 187 of 2016).*** ***BETWEEN*** ***EDWIN SIRONKA ………………………………………………. PLAINTIFF*** ***– VERSUS –*** ***ROBERT MUYANI ……………………………………………. DEFENDANT*** ***JUDGMENT*** 1. This Appeal arises from the ruling of the Senior Principal Magistrate at Narok, **Hon. T. Gesore**, delivered on **9th May 2017** in Narok **CMCC No. 187 of 2016**, wherein the trial magistrate dismissed the Appellant (Defendant then) Notice of Motion dated ***17th January 2017,*** wherein he had sought for setting aside of the Exparte judgment dated entered in favour of the Respondent( Plaintiff then). 2. The Appellant (Defendant/Applicant thereon) had averred that he was not accorded a fair hearing, and he will suffer irreparable loss and damage if the Exparte judgment is not set aside, and the Respondent will be compensated with damages. 3. The dispute originated from a suit instituted by the Respondent herein as the Plaintiff before the trial court, against the Appellant vide a Plaint dated ***18th October 2016*,** in respect of land parcel no. ***CISMARA/OLELESHWA/14181*** measuring ***1.61 Ha****.* 4. A brief background of the dispute at the trial court was that the Respondent allegedly purchased the suit property from the Appellant pursuant to a ***Sale Agreement*** dated ***2nd September*** ***2016,*** under which the Appellant agreed to sell the suit property to the Respondent for the purchase price of ***Kshs. 2,000,000/=***. 5. The Respondent alleged that despite executing the sale agreement and transfer documents, the Appellant( Defendant) refused to facilitate the transfer of the suit property and denied him possession thereof. 6. The Respondent consequently sought orders compelling the Appellant( Defendant) to transfer the said portion of land to him, or in the alternative, compensation equivalent to the current market value of the land, together with costs and interest. 7. Although the Appellant entered appearance, he failed to file a Statement of Defence within the prescribed time causing the matter to proceed by way of formal proof. Consequently, judgment was entered in favour of the Respondent on ***29th November 2016*** upon which a decree subsequently issued. 8. Thereafter, the Appellant moved the trial court by way of a Notice of Motion Application dated ***17th February 2017,*** seeking inter alia, the setting aside of the ex parte judgment and the resultant decree, leave to file and serve his Statement of Defence out of time, and a stay of execution pending the hearing and determination of the application. 9. The Appellant contended that he had been denied an opportunity to be heard, that he had not been properly served with the requisite court process, and that he was unaware of the proceedings leading to the entry of judgment until ***31st January 2017***. Upon considering the application, the trial court dismissed it in a ruling delivered on ***9th May 2017***, leading to the present appeal. 10. Dissatisfied with the said ruling, the Appellant lodged the present appeal vide a Memorandum of Appeal dated ***9th June 2017***, wherein the Appellant sought , inter alia, an order of setting aside the impugned ruling, the ex parte judgment and the consequential decree, and that the suit be reinstated for hearing and determination on its merits. The Memorandum of Appeal is premised on the following grounds: 11. ***The trial magistrate erred in dismissing the Appellant's application dated 17th February 2017 without addressing all the issues raised therein.*** 12. ***The magistrate misdirected himself on the issues raised in the said application.*** 13. ***The ruling was based on procedural technicalities rather than substantive justice.*** 14. ***The magistrate failed to consider the substantive issues of law and fact contained in the draft statement of defence annexed to the application.*** 15. ***The magistrate failed to objectively and conclusively determine all the issues pleaded in the draft defence.*** 16. ***The magistrate delivered a ruling contrary to the provisions of the Land Control Act, Cap. 302, thereby allegedly upholding a transaction that was null and void.*** 17. ***The ruling was factually unsound, fundamentally flawed, and legally unsustainable.*** 18. On his part, the Respondent argued that the appeal is ***misconceived*** as the grounds raised therein challenge the default judgment entered on ***29th November 2016,*** and the consequent decree dated ***31st November 2016*** ,rather than the ruling of ***9th May 2017,*** refusing to set aside the judgment. The Respondent therefore maintains that the appeal is incompetent and ought to be struck out. 19. The Appeal was canvassed by way of written submissions. The Appellant did not file his written submissions. However, the Respondent herein filed his written submissions dated ***20th February 2026,*** through Osur & Associates Advocates and submitted as follows: 20. That the Memorandum of Appeal dated ***9th June 2017,*** was fundamentally ***defective*** and ***incompetent*** because it was unclear whether the Appellant was challenging the ruling of ***9th May 2017*** or the default judgment delivered on ***29th November 2016***. 21. That although the appeal was framed as an appeal against the ruling, the grounds of appeal predominantly attacked the default judgment and the evidence adduced during the formal proof hearing. The Respondent therefore maintained that the Appellant was attempting to use the appeal against the ruling to indirectly challenge the judgment, which had not been appealed against within the prescribed time. 22. The Respondent relied on the case of ***Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR****,* and submitted that an ***incompetent appeal deprived*** the court of jurisdiction to determine the dispute. According to the Respondent, the Memorandum of Appeal failed to identify with clarity the decision being challenged and was therefore incapable of sustaining the appeal. 23. On the background of the dispute, the Respondent stated that he had filed a Plaint dated ***18th October 2016,*** and duly served the Appellant. Although the Appellant ***entered appearance***, he failed to attend court to adduce evidence, and that his Defence was a frivolous. Consequently, the matter proceeded to formal proof, resulting in judgment being entered on ***29th November 2016*** and a decree being issued on ***31st November 2016***. Before execution commenced, the Appellant filed an application seeking to set aside the default judgment on the grounds that he had not been served and that material facts had been concealed; which application was dismissed by the trial court on ***9th May 2017.*** 24. The Respondent further submitted that the eight grounds of appeal concentrated on the merits of the judgment, the evidence tendered during the hearing, and other substantive matters relating to the judgment of ***29th November 2016,*** rather than the ruling dismissing the application to set aside. It was therefore submitted that the appeal did not directly challenge the reasoning or findings contained in the ruling of 9th May 2017. 25. The Respondent further relied on the case of ***Akhura v Simon Kibet Rugut (Civil Appeal E054 of 2024) [2025] KEHC 3133 (KLR)****,* where the court struck out an appeal for being misconceived and for challenging different decisions in an indistinguishable manner. It was submitted that the present appeal suffered from a similar defect, as it appeared to challenge both the ruling and the judgment without clearly identifying the decision under appeal. 26. The Respondent prayed that the court finds that the Memorandum of Appeal was unclear, misconceived, and incompetent, and consequently to dismiss and or strike out the Appeal with costs. 27. The court has carefully considered the ***Record of Appeal***, the ***Memorandum of Appeal***, the ruling of the trial court, and the submissions filed by the Respondent, and renders itself as follows; 28. As this is a first appeal, this Court is obligated to ***reconsider*** and ***re-evaluate*** the material that was before the trial court and arrive at its own ***independent conclusion***, while bearing in mind that it neither saw nor heard the witnesses testify. See ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123****.* 29. From the grounds of appeal and the record before this Court, the principal issue for determination is whether the learned trial magistrate properly exercised his discretion in declining to set aside the ex parte judgment entered on ***29th November 2016****.* 30. The law regarding the setting aside of ex parte judgments is well settled under ***Order 10*** ***Rule 11*** of the ***Civil Procedure Rules*** which grants the court unfettered discretion to set aside or vary a default judgment upon such terms as may be just. However, that discretion must be exercised judiciously and not capriciously. 31. In ***Patel v E.A. Cargo Handling Services Ltd [1974] EA 75****,* the Court held that the main concern of the court is to do justice to the parties and that the discretion to set aside should be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the course of justice. 32. Similarly, in ***Shah v Mbogo & Another [1967] EA 116****,* the Court stated that the discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to aid a litigant who has deliberately sought to obstruct or delay the course of justice. 33. The Record of Appeal reveals that the Appellant ***entered appearance*** in the suit after being served with Summons. His complaint before the trial court was therefore not that he was entirely unaware of the suit, but rather that he had not filed a defence and that the matter proceeded for formal proof resulting in judgment being entered against him. 34. It is evident from the proceedings that the trial magistrate considered the grounds advanced by the Appellant and found no sufficient cause to warrant setting aside the exparte judgment. The court further observed that the Appellant was aware of the proceedings, and he showed his awareness by entering appearance, but failed to take the next procedural step of filing a defence. 35. The Court of Appeal in ***Pithon Waweru Maina v Thuku Mugiria [1983] eKLR*** emphasized that an appellate court should not interfere with the exercise of judicial discretion, unless it is satisfied that the lower court misdirected itself in law, took into account irrelevant matters, failed to take into account relevant matters, or that its decision is plainly wrong. 36. The Appellant herein did not file his submissions in support of the instant Appeal, and this court can correctly find and hold that the Appeal was not prosecuted. However, since there is a Memo of Appeal, the court will consider it together with the written submissions filed by the Respondent. 37. Having perused the ruling appealed against, this court is unable to discern any misdirection by the trial court in arriving at the impugned ruling. The learned trial magistrate addressed the application before him and exercised the discretion conferred by ***Order 10 Rule 11*** of the ***Civil Procedure Rules*** after considering the circumstances presented by the parties. 38. The Appellant had argued in his Memo of Appeal that the trial court failed to consider the ***Draft Statement of Defence*** annexed to the application. The law is clear that where an applicant demonstrates the existence of a plausible defence raising triable issues, the court ought generally to lean in favour of allowing the matter to proceed to hearing as was held in ***Tree Shade Motor Limited v D.T. Dobie & Company (K) Limited & Another [1995-1998] 1 EA 324****.* 39. This Court has examined the ***Draft Statement of Defence*** on record. The Appellant principally disputed the sale transaction and raised issues touching on the validity and enforceability of the agreement. He contended that the Respondent only paid ***Kshs.*** ***500,000/=*** at the advocates’ offices, and that the Plaintiff (Respondent) later fraudulently obtained additional money from him. 40. However, the trial court was entitled to consider those averments alongside the conduct of the Appellant, including his failure to file a defence despite entering appearance and the explanation offered for that omission. 41. More importantly, this Court notes that many of the grounds contained in the Memorandum of Appeal challenge the merits of the judgment entered on ***29th November 2016,*** and the evidence tendered during formal proof. Yet the decision directly before this Court is the ruling delivered on ***9th May 2017,*** whichdisallowed an application for setting aside of the ***Exparte judgment*** of ***29th November 2016.*** 42. An appeal must be directed against the decision complained of. A party cannot use an appeal against a refusal to set aside a judgment as a vehicle for mounting a substantive challenge against the judgment itself where no appeal against that judgment has been lodged. To that extent, the Respondent’s objection is merited. 43. Nevertheless, even considering the appeal on its merits, this court finds no basis upon which this Court can interfere with the exercise of discretion by the learned trial magistrate. The Appellant has not demonstrated that the court acted on wrong principles, ignored relevant considerations, or arrived at a plainly erroneous decision. See the case of ***Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR)*** 44. Consequently, having considered the instant appeal vide the Memo of Appeal dated ***9th June 2017***, which was not canvassed by the Appellant, and the written submissions by the Respondent, this court finds and holds that the appeal lacks merit and cannot stand. Consequently, the instant appeal is hereby dismissed and the court makes the following orders: - 45. ***The instant Appeal vide the Memo of Appeal dated 9th June 2017, is hereby dismissed in its entirety.*** 46. ***The ruling and orders of the Senior Principal Magistrate delivered on 9th May 2017 in Narok CMCC No. 187 of 2016 are hereby upheld.*** 47. ***The Appellant shall bear the costs of this Appeal*** **It is so ordered**. ***Dated, Signed*** *and* ***Delivered Virtually* at** Narok This 29th Day of ***June 2026*.** ***L. GACHERU*** ***JUDGE*** ***Delivered online in the Presence of: -*** **Elijah Meyoki - *Court Assistant*** ***No Appearance for Appellant*** ***No Appearance for Respondent*** ***L. GACHERU*** ***JUDGE***