Lucky Kai v Daniela Tosetto
The bottom line
#The Environment and Land Court dismissed Lucky Kai's appeal, confirming that skipping your own trial hearing and failing to present evidence can cost you your case and the property.
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 Appeal has merit?
- 2.What reliefs are the parties entitled to?
Key legal issues
#Whether the trial court violated the appellant's right to a fair hearing by proceeding ex parte on 14th November 2023
No violation; the hearing dates were fixed by consent, notice was duly served, and the appellant and his counsel never sought to set aside the ex parte proceedings or arrest judgment in the trial court
The court held that the primary obligation rested on the appellant's counsel to honour the consented hearing dates or deputize/seek adjournment. No affidavit evidence was ever lodged in the trial court explaining the absence. Raising the complaint for the first time on appeal, without any application to set aside below, was fatal. Order 12 Rule 2(a) mandated the ex parte hearing.
Whether the trial court erred in granting ownership and possession of the suit property to the respondent
No error; the respondent's uncontroverted evidence of payments through the appellant supported the plaint wholly, and the appellant's defence, unsupported by evidence, was of no consequence
The appellant filed a defence and counterclaim but called no evidence. Pleadings are mere allegations; the appellant was required to prove that monies were sent gratuitously as a boyfriend's gift and applied at his sole discretion. The unopposed evidence that the respondent equipped the house persuaded the court that the funds were for her holiday home, not a gift to the appellant.
Legal principles established
#- A litigant sufficiently notified of a hearing date must attend; where the court placed no impediment, the trial court is not to blame for the consequences of an ex parte hearing arising from a party's unexplained non-attendance
- A party who fails to seek setting aside of ex parte proceedings in the trial court cannot raise the fairness of those proceedings for the first time on appeal
- Where a defence is filed but no evidence is called in support of it, the defence is of no consequence
Court orders
#- 1.The present appeal is dismissed and the judgment delivered on 21st November 2023 by the Trial Magistrate Hon. J Ongondo in Malindi MCELC E383 OF 2022 is upheld
- 2.The costs of the present appeal and of the suit before the trial court (Malindi MCELC E383 OF 2022) shall be borne by the appellant
- 3.The appeal file is marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Malindi
- Malindi MCELC E383 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's judgment in Malindi MCELC E383 of 2022
Relief refused
#The appellant's appeal in its entirety
No juridical basis to overturn the impugned judgment; the appellant's unexplained non-attendance and failure to call evidence in the trial court were fatal
Costs
The costs of the present appeal and of the suit before the trial court to wit Malindi MCELC E383 OF 2022 shall be borne by the appellant
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 present appeal is hereby dismissed and the Judgement delivered on 21st November 2023 by the Trial Magistrate Hon. J Ongondo in Malindi MCELC E383 OF 2022 is hereby upheld;
The costs of the present appeal and of the suit before the trial court to wit Malindi MCELC E383 OF 2022 shall be borne by the appellant;
Though the Constitution of Kenya 2010 provides for the right to a fair trial and a fair hearing, a litigant who has been sufficiently notified by the listing of the matter for hearing as scheduled must attend court for his hearing.
The omission to seek to set aside the proceedings and seek a hearing before the trial court despite having the opportunity to do so renders a fatal blow to their case at this appellate level
it is the rule that where a defence has been filed and no evidence is called in substantiation of the statements therein, that defence is of no consequence.
Issues in the judgment
#Plaint date precedes its amendment date
Memorandum of Appeal dated before the judgment appealed against
Inconsistent travel cost figures
Typographical error in date of appearance on submissions date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucky Kai v Daniela Tosetto", Case Analysis (2026). ELCA E023 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6187/eng@2026-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.