Kabuthia & 10 others v Karanja (Civil Appeal 370 of 2019) [2025] KECA 624 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a land judgment won without proper service, ruling courts must set aside such proceedings as a matter of right.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appellants herein were served with the pleadings and hearing notices in the matter before the trial court
- 2.whether we ought to interfere with the trial judge’s discretion
Key legal issues
#Whether the appellants were served with the pleadings and hearing notices in the trial court
The Court found the appellants were never served with hearing notices of the various applications, including the formal proof hearing, and no proof of service was filed.
Although an advocate appeared for the appellants and filed an application to set aside the interlocutory judgment, neither the appellants nor counsel were served when the respondent appeared before the court, and no affidavit of service was filed. The formal proof judge did not inquire into service. The 4th appellant's presence at judgment could not be visited on the other ten appellants who learned of the judgment months later.
Whether the Court should interfere with the trial judge's discretion in declining to set aside the default judgment
The Court interfered, holding the trial court failed to properly interrogate the record and arrived at the wrong conclusion; the pursuit of justice required setting aside the ruling.
The trial court found service had occurred, which the record did not support. Where there is no proper service, resulting proceedings including default judgment are irregular and must be set aside ex debito justiciae. The appellants had instructed counsel who failed to enter appearance or file a defence; clients should not be penalized for counsel's transgression, and land is an emotive subject such that parties should not be shut out from the seat of justice.
Whether the appellants should be penalized for their counsel's failure to enter appearance or file a defence
No; the appellants had instructed counsel as shown by the record and ought not to be penalized for the transgression of counsel.
The record showed the appellants instructed the firm of Mwendwa, Macharia, Mwangi & Co. Advocates, which appeared and sought to set aside the interlocutory judgment; the file went missing and thereafter counsel was not heard of again, nor were the appellants served with subsequent applications culminating in formal proof.
Legal principles established
#- Where there is no proper or any service of a hearing notice, the resulting proceedings including the default judgment are irregular and must be set aside as a matter of judicial duty, not discretion.
- An appellate court will only interfere with the exercise of judicial discretion by a trial court if satisfied the judge misdirected himself on the law, misapprehended the law, took into account considerations he should not have, failed to take into account considerations he should have, or the decision was plainly wrong.
- On a first appeal, the Court must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal allowed
- 2.Impugned ruling of the ELC set aside
- 3.Leave granted to the appellants to file their defence and counter-claim within fourteen (14) days from the date of the judgment
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC)
- ELC Case No. 323 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (memorandum of appeal dated 8th August 2019)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Based on the foregoing, we conclude that the pursuit of justice requires the setting aside of the ruling. We accordingly allow the appeal, set aside the impugned ruling, and grant leave to the appellants to file their defence and counter-claim within the next fourteen (14) days from the date of this judgement. Each party is to bear their own costs.
Where there is no proper or any service of a hearing notice, the resulting proceedings including the default judgment are irregular and the court must set them aside ex debito justiciae (as a matter of right) on application by the afiected party.
to deny a party a hearing should be the very last resort of a court of justice
Land remains a highly emotive subject in this country, and the appellants herein, who have shown an interest in defending the matter, were not made aware of the hearing. They ought not to be shut out from the seat of justice.
The 4th appellant may have been in court at the time of the judgment, but this cannot be a reason to punish the other 10 who may not have been aware of the judgment either, and who came to learn of it months later and ought not to be penalized for the delay.
Issues in the judgment
#The ruling as quoted states a date of 10th June 2024, while the narrative earlier records the Deputy Registrar's direction as made on 10th June 2014 - an apparent internal date inconsistency.
The signature block appears corrupted, running 'JUDGE OF APPEAL ALI-ARONI' together, making the third judge's full name ambiguous.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabuthia & 10 others v Karanja (Civil Appeal 370 of 2019) [2025] KECA 624 (KLR)", Case Analysis (2025). Civil Appeal (Memorandum of Appeal dated 8th August 2019) from ELC Case No. 323 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/624/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.