Odek v Nyang’oro (Environment and Land Case Civil Suit E019 of 2023) [2025] KEELC 193 (KLR)
The bottom line
#A Kisumu court upheld the setting aside of a default land judgment but ruled the plaintiff deserved Kshs 30,000 thrown away costs.
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 1st Defendant was served and made aware of the ongoing suit against him.
- 2.Whether failure to serve Notice of Entry of Judgement is a ground for setting aside judgement.
- 3.Whether the trial court exercised its discretion judiciously.
Key legal issues
#Whether the Respondent was served with Summons to Enter Appearance
The trial court erred in not finding that the Respondent had been properly served; the burden of proving non-service was on the Respondent and the Affidavits of Service were uncontested and untested by cross-examination.
The court examined the Affidavits of Service on record, including one sworn by David Elvis Ochieng showing service of Summons to Enter Appearance and other documents. The Respondent denied service but did not call the process server for cross-examination to test the Affidavit's contents. Since it was for the Respondent to prove non-service, the appellate court found service was proved and that the trial court erred in requiring an affidavit from the area Chief.
Whether failure to serve Notice of Entry of Judgement is a ground for setting aside a default judgement
No - it is only a ground for stay of execution; and the trial court did not in fact hold otherwise, so no misdirection arose on this issue.
The proviso to Order 22 Rule 6 requires ten days' notice of entry of judgement before execution. The court found the trial court merely noted the absence of such service but based its decision on natural justice, Article 50, triable issues and absence of prejudice. The appellate court agreed with the Appellant's submission that failure to issue the notice relates to execution, not to setting aside, and found the trial court had not misdirected itself.
Whether the trial court exercised its discretion judiciously in setting aside the ex parte judgement
The discretion was substantially judiciously exercised, but the trial court erred in failing to award the Appellant thrown away costs; the ruling was varied accordingly.
Judicious exercise of discretion means acting on sound reason and fixed principles, not whim or sympathy. The trial court relied on triable issues in the draft defence, natural justice and Article 50 of the Constitution to give the Respondent a chance to be heard, which was legitimate. However, given evidence that the Appellant had expended time and resources prosecuting the suit and that service had been effected, the court ought to have compensated the Appellant with thrown away costs, which it failed to do.
Legal principles established
#- The burden of proving non-service of summons lies on the defendant; where the Affidavit of Service contents are uncontested and the process server is not called for cross-examination, service is taken as proved.
- Failure to serve Notice of Entry of Judgement is a ground for stay of execution and not a ground for setting aside a default judgement.
- When a court exercises discretion to set aside an ex parte judgement, it should compensate the plaintiff who expended time and resources by awarding thrown away costs.
Court orders
#- 1.The ruling of the trial court is varied by setting aside the order that costs be in the cause and replacing it with an order awarding thrown away costs of Kshs 30,000 to the Appellant.
- 2.Costs of the appeal are awarded to the Appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nyando Senior Principal Magistrate's Court (SPMC)
- Nyando SPMC ELC Case No. 32 of 2019
- Jurisdiction invoked
- First appeal from the trial magistrate's court (appellate jurisdiction of the Environment and Land Court)
Relief refused
#Dismissal of the application dated 26th May, 2023 (setting aside of the ex parte judgement)
The court upheld the trial court's setting aside of the ex parte judgement, finding the Respondent had been served but varying only the costs order.
Costs
Costs of the appeal are awarded to the Appellant; the trial court's order that costs be in the cause was set aside and replaced with thrown away costs of Kshs 30,000 to 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.
It was upon the Respondent to prove non-service and my analysis of the evidence placed before the trial Magistrate reveals that the Respondent was served. The contents of Afidavit of Service were not contested.
I find that the trial court erred in not finding and holding that the Respondent had been properly served and thereby notified of the existence of the suit.
I find that, as submitted by Counsel for the Appellant, failure to issue Notice of Entry of Judgment is a ground for stay of execution and not a ground for setting aside judgement.
The ruling of the trial court is varied by setting aside the order that costs be in the cause and replacing it with an order awarding thrown away costs of Kshs 30,000 to the Appellant.
Costs of the appeal are awarded to the Appellant.
Issues in the judgment
#Internal date inconsistencies in service chronology: Affidavit of Service described as sworn 11th July, 2018 but filed 19th July, 2019 for service allegedly effected 11th July, 2019; another affidavit sworn 13th August, 2018 for service effected 13th August, 2019.
The Yooshin Engineering Corporation citation contains an internally inconsistent date ('[2023] KELC 872 (KLR) (7 July 2013)').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makoffu & another v Canuck Holdings Limited & 4 others (Environment and Land Case 231 of 2018) [2025] KEELC 6545 (KLR)[2025] KEELC 6545 (KLR)30 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Odek v Nyang’oro (Environment and Land Case Civil Suit E019 of 2023) [2025] KEELC 193 (KLR)", Case Analysis (2025). Nyando SPMC ELC Appeal (amended Memorandum of Appeal dated January 23, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/193/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.