Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Le John Enterprises & 3 others (Environment and Land Case E014 of 2023) [2025] KEELC 6906 (KLR)
The bottom line
#A Kenyan land court set aside a default judgment because the defendants' lawyer's departure caused the delay and their draft defence raised real issues for trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court ought to set aside the default (interlocutory) judgment and the consequential formal proof proceedings
Key legal issues
#Whether the default (interlocutory) judgment and the formal proof proceedings of 14th October 2024 should be set aside
Yes. The reasons advanced for the default (counsel handling the matter left the firm without a handover) were plausible, and the draft defence raised triable issues; the preliminary objection was without merit and the application was allowed subject to throw away costs
The court applied the unconditional discretion in Chemwolo, holding that the explanation for the failure to file a defence (an advocate's inadvertence after an associate left the firm) was plausible and that mistakes of advocates should not be visited on clients. Applying Patel, the draft defence raised triable issues such as ownership of the suit property, limitation, and capacity of the estate to be sued, warranting hearing on the merits.
Whether the Preliminary Objection dated 4th February 2025 should strike out the application
The Preliminary Objection was without merit and was dismissed
Having found that the defendants' explanations were plausible and that triable issues existed, the court concluded that the procedural objections (lack of authority under Order 1 Rule 13, absence of grant for the deceased 2nd Defendant, absence of a formal interlocutory judgment) could not defeat the discretion to set aside the default judgment so as to allow hearing on the merits.
Legal principles established
#- The court's discretion to set aside default judgment is unconditional, and where judgment was obtained regularly the applicant must show a defence on the merits (a triable issue); the reason for the default is only one matter the court considers
- A defence on the merits need not be a defence that must succeed; it suffices that it raises a triable issue fit for trial
Court orders
#- 1.The interlocutory judgment entered against the 1st and 2nd Defendants and the formal proof hearing held on 14th October 2024 are set aside
- 2.The 1st and 2nd Defendants to file their defence to the suit within 21 days from the date of the Ruling
- 3.The 1st and 2nd Defendants to pay the plaintiff throw away costs of Kshs.15,000/= within 21 days from the date of the Ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the court under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
Relief refused
#Defendants' request to file defence within 7 days
The court allowed filing of the defence but extended the period to 21 days rather than the 7 days sought
Costs
Costs of the application were not awarded to either party; instead the Defendants were ordered to pay throw away costs of Kshs.15,000/= to the plaintiff as a condition for setting aside the judgment
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.
That the interlocutory judgment entered against the 1st and 2nd Defendants and also the formal proof hearings held on 14th October 2024 are hereby set aside.
That the 1st and 2nd Defendants to file their defence to the suit within 21 days from the date of this Ruling.
On Condition that the 1st, 2nd Defendants do pay to the plaintifi throw away costs of Kshs.15,000/= within 21 days from the date of this Ruling.
The principle obviously, is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.
I agree with the Defendants/Applicants submission that the draft defence raises triable issues that ought to be determined on the merits.
Consequently I find the Preliminary Objection to be without merit.
Issues in the judgment
#The court and case number are not stated on the face of the ruling; the venue (Kajiado) and the presence of a 2nd defendant described as a deceased person's estate and claims over a suit property suggest the Environment and Land Court, but this is inferred, not stated
Chronological inconsistency in the ruling: the supporting affidavit deposes that instructions were received on 28th September 2023, yet the recital of facts at paragraph 5 states the firm received instructions after seeing a newspaper advertisement without the formal proof hearing date issue being consistent; also the Plaintiffs' application to dismiss is described as 'with costs to the 1st and 2nd Defendants' in the Plaintiffs' own submissions, an apparent internal confusion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Le John Enterprises & 3 others (Environment and Land Case E014 of 2023) [2025] KEELC 6906 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6906/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.