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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 476 (KLR)

Nderitu v Nderitu & 3 others (Environment & Land Case 823 of 2013) [2025] KEELC 476 (KLR)

Not expressly stated; the suit concerns land (Plot No. A102 Komarock Estate Market) and the ruling is consistent with the Environment and Land Court
11 February 2025
2,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Hon. T. Murigi, Judge, determines a Notice of Motion dated 24th October 2024 by the 1st, 2nd and 3rd Defendants seeking to set aside a judgment delivered in April 2022, leave to file a Defence to the amended Plaint, and a fresh hearing. The Applicants deponed that they were never served with summons, only learning of the suit in May 2024 when their agent was arrested while clearing the suit property; they alleged forgery of the affidavit of service, particularly the signature of the illiterate and elderly 3rd Applicant, and relied on their registered ownership confirmed in ELC No. 1275 of 2007. The Plaintiff Respondent opposed, asserting personal and substituted service by Daily Nation advertisements, the absence of an appeal, inordinate delay, mala fides, and a sham draft defence, and offered a post-judgment survey showing the suit plot is distinct from the plot the Applicants claim. The 4th Defendant filed submissions unsupported by a replying affidavit, which the court disregarded. The court framed the question as whether the ex parte judgment should be set aside. Relying on Patel v East Africa Cargo Handling Services, Shah v Mbogo, James Kanyita Nderitu v Ghika, Job Kilach and Chemwolo v Kubendi, it found the Applicants were duly served and had forgone their chance to cross-examine the process server, making the judgment regular. Since ownership of the suit property required full trial interrogation, the draft defence raised triable issues. The application was allowed: the judgment and consequential orders were set aside, the Defendants got 7 days to enter appearance and file a defence, priority hearing, thrown away costs of Kshs 200,000 to the Plaintiff within 14 days, and costs of the application to the Plaintiff.

Key legal issues

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01

Whether the ex parte judgment was regular or irregular

Holding

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.

Reasoning

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.

p. 5
02

Whether the draft defence raises triable issues warranting setting aside a regular judgment

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The judgment delivered on 27th April 2022 and the consequent orders are set aside
  2. 2.The Defendants are granted 7 days leave to enter appearance and file their Defence
  3. 3.The hearing of the suit shall be on a priority basis
  4. 4.The Plaintiff is awarded thrown away costs of Kshs 200,000 payable within 14 days
  5. 5.The Plaintiff is awarded the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 14
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (7)

  • David Kiptanui Yego & 134 others vs Benjamin Rono & 3 others
    (2021) eKLR
  • Arithi Selasio Murungi vs Bright Wanja Julius
    (2020) eKLR
  • Patel vs East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Shah v Mbogo & Another
    (1967) E.A 116
  • James Kanyita Nderitu & another v Marios Philotas Ghika & another
    (2016) eKLR
  • Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Micheal Rono
  • Chemwolo & another vs Kubendi
    (1986) KLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.