Nderitu v Nderitu & 3 others (Environment & Land Case 823 of 2013) [2025] KEELC 476 (KLR)
The bottom line
#A Kenyan court set aside a 2022 default judgment over Komarock land because the defendants' ownership claim raised genuine issues needing a full trial, but they paid heavily for ignoring court papers.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment was regular or irregular
The Applicants were duly served (substituted service by advertisement in the Daily Nation, and an affidavit of service) and did not request cross-examination of the process server; the judgment was therefore a regular judgment.
The court found on the record that the Respondent obtained leave for substituted service in 2017 and advertised the summons and hearing notices in the Daily Nation, and that an advocate's affidavit of service was on file. The Applicants did not apply to cross-examine the deponent. Their failure to enter appearance or file a defence meant they forfeited the opportunity to be heard, so the default judgment was regular and could only be set aside on discretionary terms, not as of right.
Whether the draft defence raises triable issues warranting setting aside a regular judgment
The issue of ownership of the suit property requires interrogation at a full trial; the draft defence raises triable issues and sufficient cause was shown.
Applying the criteria in James Kanyita Nderitu v Ghika (reason for default, delay, triable issues, prejudice, interests of justice) and the definition of triable issues in Job Kilach, the court held that the Applicants' claim to be registered proprietors of the suit property, confirmed in earlier ELC No. 1275 of 2007 proceedings, was a matter requiring full trial interrogation. The application dated 24th October 2024 was accordingly merited and allowed on terms, including thrown away costs to the Plaintiff.
Legal principles established
#- A regular default judgment should not be set aside unless the defendant shows a defence raising triable issues; the court exercises a discretion on terms that are just.
- A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial, and need not be an issue that would succeed.
- An irregular default judgment entered against a defendant not served is set aside ex-debito justitiae as a matter of right.
Court orders
#- 1.The judgment delivered on 27th April 2022 and the consequent orders are set aside
- 2.The Defendants are granted 7 days leave to enter appearance and file their Defence
- 3.The hearing of the suit shall be on a priority basis
- 4.The Plaintiff is awarded thrown away costs of Kshs 200,000 payable within 14 days
- 5.The Plaintiff is awarded the costs of the application
- Jurisdiction invoked
- Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 50(1) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderitu v Nderitu & 3 others (Environment & Land Case 823 of 2013) [2025] KEELC 476 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/476/eng@2025-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.