Emmanuel Katana Charo & 5 others v John Charo Mwaro & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that ignoring a lawsuit for three years and blaming your lawyer will not save you from losing your land.
What this practically means
#Executive summary
#Key legal issues
#Interference with discretionary decisions on appeal
The Court has no basis to interfere where the trial Judge took into account no irrelevant matters and omitted no relevant ones.
Restating Mbogo v Shah, United India Insurance and Apungu Arthur Kibira, the Court held that an appellant attacking a discretionary decision must show error of law or principle, taking account of irrelevant considerations, failure to take account of relevant considerations, or that the decision is plainly wrong. The Court found none of these errors in the trial Judge's ruling declining to set aside the default judgment.
Blaming counsel for failure to file a defence
Blame of former counsel does not suffice where the litigant is complicit through inaction over a prolonged period.
Although legal fees were paid to the former advocate, the Appellants took no steps for three years to follow up the pending suit, seek updates, or change counsel, and instead continued developing the suit land. Their application came too late in the day and was intended to obstruct or delay the court process; they were complicit and indolent litigants and the trial Judge was right to so find.
Whether the draft defence raises triable issues
The draft defence did not raise triable issues because the grant on which it relied had been nullified and revoked in succession proceedings.
The trial Judge did not consider the draft defence, but nothing turned on that. The Appellants did not deny selling portions of the suit land. The Respondents showed that the High Court in Malindi Succession Cause nullified and revoked the grant obtained by the 1st and 2nd Appellants, rendering their defence largely overtaken by events; setting aside the judgment would serve no useful purpose.
Regularity of the default judgment
The exparte judgment was regular because service of summons was not disputed.
The Appellants accepted that summons were properly served and that they instructed an advocate thereafter. Under the principles in Mohamed & Another v Shoka, the first criterion — whether there is a regular judgment — was satisfied, leaving the Court to consider reasons for default, triable issues, delay and prejudice, all of which the Appellants failed on.
Legal principles established
#- An appellate court will only depart from an exercise of discretion of the trial Judge if the decision was not based on evidence on record, or where the court acted on wrong principles of law, or where the discretion was exercised injudiciously.
- A litigant who blames counsel for default but fails to follow up on the case for years is an indolent litigant whose default will not be excused.
- A court dealing with an application to set aside default judgment must examine the draft defence to determine whether it raises a triable issue.
Court orders
#- 1.The appeal is dismissed
- 2.The Appellants to pay costs of the appeal to the Respondents
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal from the High Court in its original jurisdiction under Rule 31(1) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Katana Charo & 5 others v John Charo Mwaro & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1701/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.