https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4443

Karani v Maina (Environment and Land Appeal E045 of 2023) [2026] KEELC 4443 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELC 4443 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Appeal E045 of 2023 SM Kibunja, J July 15, 2026 Between Virginia Njeri Karani Appellant and Faith Wangithi Maina Respondent (Being an appeal from the Ruling of Hon. C. Wanyama, PM, delivered on 15th December 2023 in Kerugoya CM ELC Case No. 50 of 2016) Judgment Introduction: 1.This appeal challenges the exercise of judicial discretion by the Hon. C. Wanyama, Principal Magistrate, in declining to set aside the ex parte judgment delivered on 28th March 2019 by Hon. Wambo, PM, against the Appellant.In the ruling delivered on 15th December 2023, the learned trial magistrate found that although the Appellant attributed her non-participation in the proceedings to the omissions of her previous advocate, she failed to satisfactorily explain why, having instructed counsel in 2016, she took no steps to ascertain the progress of her own case. Consequently, the learned magistrate declined to reopen the proceedings. Background: 2.The Respondent had instituted Kerugoya CM ELC Case No. 50 of 2016 by a Plaint dated 24th February 2016 in her capacity as the legal representative of the estate of her late husband, Francis Maina Karani. She pleaded inter alia that during land consolidation and demarcation, the Appellant's late husband, Elijah Karani Munyua, was allocated Land Parcel Mwerua/Mukure/638, which was subsequently subdivided, giving rise, inter alia, to Parcel Mwerua/Mukure/891. 3.Her case before the trial court was that Parcel Number Mwerua/Mukure/891 constituted ancestral family land which the Appellant held in trust for the children of the late Elijah Karani Munyua, including her late husband, Francis Maina Karani. She averred that following family deliberations, it had been agreed that the land be subdivided amongst the Appellant's four sons, each to receive approximately one acre, while a portion would be sold to meet the costs of subdivision and the balance retained by the Appellant and her daughters. 4.According to the Respondent, that arrangement culminated in the subdivision of Parcel Number Mwerua/Mukure/891 into Parcels Mwerua/Mukure/1863, 1864, 1865, 1866, 1867 and 1868.She pleaded that Parcel Mwerua/Mukure/1865 was specifically allocated to her late husband, but remained registered in the Appellant's name notwithstanding the family arrangement. She therefore sought, among other reliefs, a declaration that the Appellant held the parcel in trust, an order compelling its transfer to her as the legal representative of the estate of the deceased to hold in trust for their children, a permanent injunction and costs. 5.The Appellant entered an appearance and filed a Statement of Defence dated 15th March 2016 through the firm of M/s Gitonga D.N. & Company Advocates. She joined issue with the Respondent on virtually every material allegation. She denied that the Respondent remained a member of the family, averring that following the death of Francis Maina Karani, she had deserted her matrimonial home and married elsewhere. She further denied that Parcel Number Mwerua/Mukure/638, or its subsequent subdivisions, constituted clan or ancestral land held in trust for the Respondent's husband. 6.More fundamentally, the Appellant pleaded that during the succession proceedings relating to the estate of her late husband, Francis Maina Karani voluntarily relinquished any entitlement to family land and instead opted to receive Kshs.600,000/= from the Appellant in the presence of family elders to enable him to establish and maintain a business for his family. Consequently, according to the Appellant, neither the deceased nor the Respondent acquired any entitlement to Parcel Number Mwerua/Mukure/1865.The Defence further challenged the competence of the suit and specifically questioned the jurisdiction of the trial court to entertain it. 7.The Respondent filed a Reply to Defence denying that any such family arrangement existed or that the deceased had relinquished his entitlement to family land. She maintained that she and her children had lived on the suit property until they were forcefully driven away by the Appellant and reiterated that the Appellant continued to hold Parcel Number Mwerua/Mukure/1865 in trust for the estate of the deceased. 8.The suit eventually proceeded for hearing before Hon. E.O. Wambo, SRM. Although the Appellant had entered an appearance and filed a defence, neither she nor her advocate attended the hearing. The matter therefore, proceeded ex parte.In the judgment delivered on 28th March 2019, the learned trial magistrate accepted the Respondent's evidence, found that the deceased was the only son who had not benefited from the subdivision of the family land and ordered that Parcel Number Mwerua/Mukure/1865 be transferred to the Respondent to hold in trust for her two children. Owing to the relationship between the parties, no order as to costs was made. Consequential orders were subsequently issued authorising the Executive Officer of the court to execute the transfer documents on behalf of the Appellant. 9.Following the judgment, the Appellant instructed different advocates and on 24th January 2022 filed an application principally seeking review of the judgment and a rehearing of the suit. She deponed that after instructing her previous advocates in 2016, she never received any communication regarding the progress of the matter, and only learnt of the judgment on 20th January 2022 when prospective purchasers visited the suit property. She attributed her non-participation in the proceedings to the negligence of her previous advocates. 10.That application was struck out, with the trial court holding that the proper remedy available to the Appellant was an application for setting aside the ex parte judgment rather than one for review. The Appellant thereafter instructed her present advocates and filed the Notice of Motion dated 14th August 2023 seeking, inter alia, an order setting aside the ex parte judgment, the proceedings leading thereto and all consequential orders. She reiterated that her failure to participate in the hearing was occasioned by the omissions of her previous advocates and explained the delay between the earlier application and the present one on account of financial constraints and her advanced age. 11.The Respondent opposed the application, contending that the judgment had been regularly obtained after due process, that the Appellant had been indolent in following up her own case for several years, and that the delay had not been satisfactorily explained. It was further contended that litigation must come to an end and that the Respondent was entitled to enjoy the fruits of a lawfully obtained judgment. 12.Upon considering the application, the rival affidavits and the parties' submissions, the learned trial magistrate identified the applicable principles governing the setting aside of ex parte judgments.Relying on Shanzu Investments Limited versus Commissioner of Lands (1993) eKLR, she observed that the exercise of the discretion depended on the particular facts of each case, and principally upon whether the applicant had demonstrated a defence on the merits, whether prejudice would be occasioned to the opposite party, and whether there existed a satisfactory explanation for the delay. 13.Applying those principles, the learned magistrate accepted that the Appellant claimed to have learnt of the judgment in 2022 and attributed the subsequent delay to financial constraints. The learned trial magistrate nevertheless found that she had offered no satisfactory explanation why, after instructing advocates in 2016, she had made no effort to ascertain the progress of the case.Relying further on the case of Utalii Transport Company Limited & 3 Others versus NIC Bank Limited & Another [2014] eKLR, the learned trial magistrate concluded that the Appellant had failed to demonstrate sufficient cause for the exercise of the court's discretion and dismissed the application, making no order as to costs owing to the relationship between the parties. The Appeal: 14.Aggrieved by that decision, the Appellant preferred this appeal through the Memorandum of Appeal dated 21st December 2023, raising three (3) grounds that are summarized as follows:a.That the learned trial magistrate erred in law and in fact by failing to consider that the appellant did not participate in the hearing of the suit until after the judgment was delivered and arriving at an erroneous decision.b.That the learned trial magistrate erred in law and in fact in visiting the mistakes of advocates upon her.c.That the learned trial magistrate failed to accord the appellant a fair hearing. 15.The record confirms that the learned counsel for the appellant applied for, and obtained leave to file an amended memorandum of appeal on 5th June 2025, but none has been traced on the physical record, and CTS. The memorandum of appeal filed herein indicated at its heading, below the names of the parties, that the appeal was over a ruling “delivered on the 15th December 2016”. That was repeated on the heading of the record of appeal dated 4th June 2025. However, the body of the memorandum of appeal and the fact that the ruling attached in the record of appeal is the one dated 15th December 2023 leaves no doubt that the appeal filed herein is against the ruling delivered on 15th December 2023. 16.Directions on filing and exchanging submissions were issued on the 21st July 2025. The learned counsel for the appellant and respondent consequently filed the submissions dated 11th August 2025 and 12th September 2025 respectively, which the court has considered. Parties' Submissions: 17.Counsel for the Appellant submitted inter alia that the learned trial magistrate misdirected himself in declining to exercise his discretion in favour of the Appellant, despite the peculiar circumstances of the case.It is argued that immediately upon being served with summons to enter an appearance, the Appellant instructed advocates who duly entered an appearance and filed a statement of defence on her behalf, thereby manifesting a clear intention to contest the Respondent's claim. Counsel contends that the Appellant's subsequent failure to participate in the hearing of the suit was neither deliberate nor intended to obstruct the course of justice but arose solely because her previous advocates failed to notify her of the hearing date and thereafter neglected to prosecute her defence. 18.It is further submitted that the learned trial magistrate erred in visiting the omissions of counsel upon an innocent litigant. According to counsel, the Appellant, who is now advanced in age and suffers ill-health, legitimately expected that the advocates she had instructed would keep her informed of the progress of the suit and take the necessary steps to safeguard her interests. She cannot, therefore, it is argued, be deprived of her proprietary rights over family land without ever having been afforded an opportunity to testify. 19.Counsel further submits that the Appellant moved the court promptly upon discovering the existence of the judgment in January 2022, after prospective purchasers visited the suit property, and that any delay thereafter was sufficiently explained by her financial constraints and advanced age. It is urged that those circumstances constituted sufficient cause for the exercise of the court's discretion. 20.The Appellant also maintains that the defence filed before the trial court raises substantial and bona fide triable issues which ought to have been interrogated at a full hearing. Particular emphasis is placed on the pleaded defence that the Respondent's late husband had voluntarily relinquished any entitlement to the family land during succession proceedings and instead received Kshs.600,000/= in lieu thereof, as well as the Appellant's denial that the suit property was held in trust.Counsel submits that these are contested factual issues incapable of determination without receiving oral evidence. 21.It is therefore urged that any prejudice likely to be suffered by the Respondent, if the suit is reopened, can adequately be compensated by an award of costs. That declining to reopen the proceedings permanently deprives the Appellant of an opportunity to defend a claim involving ownership of land. Counsel consequently invites this Court to allow the appeal, set aside the ruling of the trial court together with the ex parte judgment and all consequential orders, and remit the suit for hearing on the merits. 22.The Respondent opposes the appeal and urges the Court to uphold the decision of the learned trial magistrate.Counsel submits that the impugned ruling was a proper exercise of judicial discretion founded upon settled legal principles and that this Court ought not to interfere merely because it may have reached a different conclusion. Counsel argues that the ex parte judgment was regularly obtained after due process and that the Appellant failed to offer a satisfactory explanation for her prolonged inaction.While acknowledging that the Appellant attributes her failure to participate in the proceedings to the conduct of her previous advocates, counsel submitted that litigation belongs to litigants and not their advocates. It is contended that parties bear a continuing obligation to make reasonable inquiries regarding the progress of their cases and cannot simply remain passive for years before attributing the consequences of their inaction to counsel. 23.The Respondent further submitted that although the Appellant asserts that she became aware of the judgment in January 2022, the present application seeking to set aside the judgment was not filed until August 2023. In counsel's view, neither the alleged financial constraints nor the Appellant's advanced age sufficiently explains that delay. Reliance is placed upon authorities emphasizing that equity aids the vigilant and not the indolent and that litigation must, at some point, come to an end. Counsel also contends that the learned trial magistrate properly directed himself by considering the principles governing applications to set aside ex parte judgments and correctly concluded that the Appellant had failed to satisfy the threshold for the exercise of the court's discretion. It is further argued that no sufficient basis has been demonstrated to warrant interference by an appellate court with that exercise of discretion. 24.Finally, the Respondent submits that she obtained a lawful judgment after prosecuting her claim before the trial court and is entitled to enjoy the fruits thereof. Reopening the matter after several years would occasion undue prejudice and undermine the principle of finality in litigation. Counsel therefore prays that the appeal be dismissed with costs. 25.The issues arising in this appeal for the court’s determination are as follows:a.Whether the learned trial magistrate misdirected herself in declining to set aside the ex parte judgment.b.Who pays the costs? 26.The court has carefully considered the grounds on the memorandum of appeal, record of appeal, submissions by the learned counsel, superior court decisions cited and come to the following findings:a.This being a first appeal, this Court is enjoined to reconsider the material that was before the trial court, evaluate it and draw its own independent conclusions, bearing in mind that it neither saw nor heard the parties who appeared before that court. That duty, however, assumes a different complexion where, as here, the appeal is directed against the exercise of judicial discretion.It is now settled that an appellate court does not interfere merely because it would itself have exercised the discretion differently. Interference is only warranted where the court below misdirected itself in law, took into account matters it ought not to have taken into account, failed to consider matters it ought to have considered, or where the decision is plainly wrong.b.The appeal before this Court must therefore be approached from that perspective. The question is not whether this Court would have set aside the ex parte judgment had the application been argued before it in the first instance. Rather, the inquiry is whether the learned Principal Magistrate exercised the discretion vested in her judicially.In the case of Mbogo & Another versus Shah [1968] EA 93, Sir Charles Newbold P stated:“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”c.The impugned ruling demonstrates that the learned trial magistrate appreciated the applicable legal principles, and relying on the case of Shanzu Investments Ltd versus Commissioner of Lands (1993) eKLR, she correctly observed that the jurisdiction to set aside an ex parte judgment is discretionary, and that the exercise of that discretion depends upon the peculiar circumstances of each case. She further identified the considerations relevant to that exercise of discretion, namely, whether the applicant had disclosed a defence on the merits, whether prejudice would be occasioned to the opposite party, and whether a satisfactory explanation had been offered for the delay.d.The Appellant nevertheless contends that although the learned trial magistrate correctly identified the applicable principles, he failed to apply them judiciously by placing undue emphasis on the delay, while overlooking the fact that her failure to participate in the proceedings resulted from the omissions of her previous advocates.It was submitted that she instructed advocates immediately upon being served with summons, that a defence was duly filed on her behalf, and that she only became aware of the judgment in January 2022 when prospective purchasers visited the suit property. Counsel maintained that the mistakes of her previous advocates ought not to have been visited upon her.e.The Respondent, on the other hand, supported the impugned ruling, arguing that litigation belongs to the litigants, and not to their advocates.It was submitted that although the Appellant blamed her former advocates, she failed to demonstrate that she had taken any steps whatsoever to ascertain the progress of her case from the time she instructed counsel in 2016 until she allegedly discovered the existence of the judgment in 2022. The learned trial magistrate, counsel submitted, was therefore entitled to conclude that the delay had not been satisfactorily explained.f.I have carefully considered those competing arguments, and to start with, there is no dispute that the Appellant entered an appearance and filed a statement of defence. That fact demonstrates that she did not ignore the proceedings from the outset, and intended to contest the Respondent's claim. Likewise, I accept that the defence filed raises issues which cannot at face value, be dismissed as frivolous. In the defence filed, the Appellant inter alia denied the existence of the alleged trust; pleaded that the Respondent's late husband had relinquished any entitlement to the family land in exchange for monetary compensation during succession proceedings, and challenged the jurisdiction of the trial court. Those are undoubtedly issues which had the matter proceeded inter partes, would have required adjudication.g.However, the existence of an arguable defence is only one of the factors to be considered. It does not without more, entitle an applicant to the discretionary relief of setting aside a regularly obtained judgment. The court must evaluate all the circumstances of the case, including the explanation offered for the default and the subsequent delay. The explanation advanced by the Appellant before the trial court was that after instructing her advocates in 2016, they failed to notify her of the hearing date, with the result that the matter proceeded ex parte. She further deponed that she only became aware of the judgment in January 2022, and that financial constraints prevented her from moving the court earlier.h.In my respectful view, the learned trial magistrate cannot be faulted for finding that the appellant’s explanations were insufficient. First, while the Appellant attributed her absence from the hearing to the omissions of her previous advocates, no material was placed before the court demonstrating that she had exercised any diligence in following up the matter.Beyond the bare assertion that counsel failed to keep her informed, the appellant did not present for example, any correspondence exchanged with the advocates, or evidence of her visits to her advocates’ chambers, or written requests for updates, or demand for her file, or any complaint suggesting that counsel had deliberately withheld information from her. The appellant therefore appear to have invited the court to infer professional default on the part of her advocates, without any evidential basis beyond the her deposition.i.Secondly, even accepting the Appellant's assertion that she only became aware of the judgment in January 2022, the explanation for the subsequent delay remained largely unsupported. Although she attributed the delay to financial constraints and advanced age, those matters were not substantiated by any documentary material.More importantly, the application culminating in the present appeal was only filed on 14th August 2023, well over a year after she claims to have discovered the existence of the judgment. The learned trial magistrate was entitled to conclude that the explanation fell short of the standard expected of a litigant seeking the equitable intervention of the court.j.The Appellant urged this Court to find that the mistakes of counsel ought not to be visited upon an innocent litigant. That proposition is undoubtedly a sound statement of law. However, like all equitable principles, it is not absolute. It cannot operate to relieve a litigant of every responsibility for the conduct of his or her own case. Litigation belongs to the parties. While a litigant is entitled to repose confidence in an advocate once instructed, that confidence does not absolve the litigant from exercising reasonable vigilance over proceedings concerning his or her rights, particularly where as here, the dispute concerns ownership of land. Whether reasonable diligence was exercised is a question of fact, and on the material placed before the trial court, I am unable to fault the learned trial magistrate for concluding that none had been demonstrated.k.I am also not persuaded that the learned trial magistrate ignored the existence of the defence. On the contrary, she expressly identified the merits of the defence as one of the relevant considerations under the principles enunciated in Shanzu Investments Ltd (Supra). The fact that she ultimately found the explanation for the delay outweighed that consideration does not, without more, amount to a misdirection. Judicial discretion necessarily involves the balancing of competing considerations. An appellate court is not entitled to interfere merely because it might have assigned different weight to those considerations.l.Having independently reconsidered the material that was before the learned trial magistrate, I am satisfied that she identified the correct legal principles, considered the explanation advanced by the Appellant, evaluated the period of delay, and exercised the discretion vested in her upon matters that were plainly relevant. It has not been demonstrated that she took into account irrelevant considerations, failed to consider relevant ones, or arrived at a decision that was plainly wrong. In those circumstances, this Court has no proper basis upon which to interfere with the exercise of that discretion. Accordingly, I find no merit in the appeal.m.Costs under Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya, follow the events unless where for good reasons the court directs otherwise. In view of the relationship between the parties, and so as to cultivate cordial relations between them, I find this to be an ideal case where each party should bear their own costs. 27.Flowing from the above conclusions, the court finds and orders as follows:a.That the appeal is without merit and is dismissed in its entirety.b.That the learned trial magistrate ruling of 15th December 2023, is hereby confirmed.c.That each party to bear their own costs.Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 15TH DAY OF JULY 2026S. M. KIBUNJAELC JUDGEIn the presence of:Appellants – No AppearanceRespondent – Mr. Maina KagioKinyua/Charles - Court Assistant