Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedVihiga MCELC Appeal (Memorandum of Appeal dated 11th February 2025) arising from Vihiga MCELC NO. E036 of 2023

Ndegwa v Ananda & another (Land Case Appeal E003 of 2025) [2026] KEELC 777 (KLR)

Environment and Land Court of Kenya at Vihiga
12 February 2026
2,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed that a default judgment can be set aside when the absent party shows a genuine defence, even after land has been transferred.

What this practically means

#

Executive summary

#
The appellant sued the respondents in Vihiga MCELC No. E036 of 2023 claiming loans of Kshs 315,000/- and Kshs 200,000/- secured by title deeds to land parcels West Bunyore/ebusikhale/2566 and 2567, with agreements that default would result in transfer of the lands to the appellant. Judgment was entered ex parte and, upon execution, the lands were transferred and leased to third parties. The respondents then applied by notice dated 21st October 2024 for review and setting aside of the judgment ex debito justitiae, contending they were never served and that the loans had been fully repaid in the sum of Kshs 1,847,000/-. By ruling dated 6th February 2025, the trial court found the application merited, set aside the ex parte judgment to allow the defence to be heard, and awarded the appellant thrown away costs. The appellant appealed on six grounds, contending that no plausible explanation for non-participation was given, no defence raising triable issues was demonstrated, the injunction granted was unwarranted, third-party interests were ignored, and the orders were overtaken by completed execution. The court, sitting as a first appellate court, applied the Selle principle of retrial and the settled discretionary-interference test from Pandoria Construction and CMC Holdings. It found the respondents' claim of full repayment and unjust enrichment a core issue entitling them to be heard, and held that the trial court fairly balanced the parties' positions while compensating the appellant by costs. The appeal was dismissed with costs to the respondents.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in setting aside the default judgment without a plausible explanation for non-participation by the defendants
  2. 2.Whether the trial court erred in granting leave to file defence in the absence of a prayer for the same
  3. 3.Whether the defendants established a plausible defence raising triable issues
  4. 4.Whether the trial court erred in granting an interlocutory injunction in the absence of a pending suit by the defendants
  5. 5.Whether the trial court ignored intervening third-party interests
  6. 6.Whether the orders of injunction and/or stay of execution were overtaken by events, execution having been completed

Key legal issues

#
01

Whether the trial court properly exercised its discretion in setting aside the ex parte judgment

Holding

Yes; the discretion was exercised judicially and fairly, balancing the respondents' claim of repayment against the appellant's inconvenience, with compensation by costs.

Reasoning

The respondents explained that they were never served as shown on the Case Tracking System, and their Supporting Affidavit raised a core issue - that the loans had been fully repaid in the sum of Kshs 1,847,000/- and the judgment would amount to unjust enrichment. The trial court found triable issues in the defence, set aside the ex parte judgment to allow a hearing on merit, and compensated the appellant with thrown away costs. That was a judicious balancing warranting no appellate interference.

p. 5
02

The applicable grounds for setting aside an ex parte judgment

Holding

The applicant must explain non-participation, demonstrate a defence raising triable issues, and show no prejudice to the other party; the discretion must be exercised upon reason and judiciously.

Reasoning

Relying on CMC Holdings Ltd vs Nzioki and Order 10 Rule 11 of the Civil Procedure Rules, the court reiterated that setting aside default judgment is a discretionary exercise to be applied judicially to avoid injustice, not to assist deliberate obstruction. The respondents' claim of full repayment of the loans and unjust enrichment constituted a core issue on which they were entitled to be heard.

p. 4
03

The standard for appellate interference with discretionary decisions

Holding

Interference is limited; an appellate court will only intervene where the trial court misdirected itself, arrived at a wrong decision, or was clearly wrong.

Reasoning

Citing Pandoria Construction Ltd vs Sanytaryware, the court applied the settled principle that appellate courts do not interfere with discretionary rulings merely because they might have decided differently. Having considered the grounds of appeal and submissions, the court found no misdirection, capriciousness, or injustice in the trial court's ruling and therefore declined to disturb it.

p. 4

Legal principles established

#
  • A first appellate court must re-analyse the evidence before the trial court and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
  • An applicant seeking to set aside an ex parte judgment must explain non-participation, demonstrate a good defence raising triable issues, and show no prejudice to the other party.
  • An appellate court will not interfere with the exercise of discretion by a trial court unless it misdirected itself or was clearly wrong.

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs to the Respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Vihiga
Vihiga MCELC NO. E036 of 2023
Jurisdiction invoked
First appeal from the Principal Magistrate's Court under the Civil Procedure Act and the Environment and Land Court Act (not expressly cited; appellate jurisdiction inferred from the nature of the appeal)

Relief refused

#

Setting aside of the trial court ruling of 6th February 2025 and dismissal of the respondents' application in the lower court with costs

The trial court exercised its discretion judicially and the appellate court found no reason to interfere

p. 5

Costs

Costs to the Respondents (the appellant to bear costs of the appeal).

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.

The appeal is hereby dismissed. Costs to the Respondents.
p. 5Final orders / disposition
I find that the trial court exercised its discretion judicially in setting aside the judgment. I find no reason to interfer with the exercise of discretion.
p. 5Appellate deference to discretionary decisions
the applicant has to explain to the satisfaction of the court the reasons for non-participation in the proceedings that led to the ex parte judgement, demonstrate that there is a good defence that raises triable issues and that prejudice will not be occasioned to the other party if the judgement is set aside.
p. 4Grounds for setting aside ex parte judgment
My assessment is that the trial court exercised its discretion fairly and reasonably by allowing the respondents a chance to prove their claim of having settled the loans and by compensating the appellant by way of costs.
p. 5Fair exercise of discretion balancing parties' interests

Issues in the judgment

#
minor

The neutral citation/case number of the present appeal is not stated in the judgment; the appeal is identified only by reference to the lower court case Vihiga MCELC NO. E036 of 2023 and the Memorandum of Appeal dated 11th February 2025.

minor

The judgment is dated 11th February 2025 per the Memorandum of Appeal reference but delivered 12th February 2026; the appeal timeline spans 2025-2026 and the lower court ruling date (6th February 2025) precedes the appeal filing.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndegwa v Ananda & another (Land Case Appeal E003 of 2025) [2026] KEELC 777 (KLR)", Case Analysis (2026). Vihiga MCELC Appeal (Memorandum of Appeal dated 11th February 2025) arising from Vihiga MCELC NO. E036 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/777/eng@2026-02-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.