Oketch v Birdee & another (Environment & Land Case 281 of 2017) [2025] KEELC 3050 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a seven-year-old default judgment, letting landowners defend an adverse possession claim after paying the plaintiff compensation costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment was irregular due to lack of service
The judgment was regular because the plaintiff, having failed to effect physical service, obtained substituted service by newspaper advertisement as directed by the court.
The process server could not trace the defendants, so the plaintiff moved the court for substituted service which was granted, and service was effected by advertisement in a daily newspaper of wide circulation. The defendants did not enter appearance, and the suit proceeded undefended. The court therefore found the resulting default judgment regular, not irregular, meaning setting aside was discretionary rather than ex debito justitiae.
Whether the draft defence discloses triable issues warranting setting aside and leave to defend
Yes - the defence that the plaintiff was the defendants' caretaker at a monthly salary of Kshs. 14,000, if established, would defeat the adverse possession claim.
Relying on Burhani Engineers Ltd v Spectre International Ltd and Isaac Awuondo v Surgipharm Limited, the court held that a defence raising even one bona fide triable issue entitles a defendant to leave to defend. The caretaker claim, if proved, would rebut adverse possession since possession would have been on behalf of the owners. The defence therefore raised a prima facie issue fit for trial rather than one that must succeed.
Whether constitutional rights to a hearing and property justified setting aside a regular judgment despite delay
Yes - the defendants' Article 50 right to be heard and Article 40 right to property outweighed the plaintiff's inconvenience, which could be compensated by thrown away costs.
Although the defendants failed to disclose exactly when they learnt of the suit, the court held that denying them a hearing before condemnation would offend Article 50, particularly given the property rights engaged under Article 40. The plaintiff's inconvenience was addressable through thrown away costs of Kshs. 30,000/=, and it was in the interest of justice that the suit be determined on its merits now that the defendants were before the court.
Legal principles established
#- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend; a triable issue need not be one that will succeed.
- Where default judgment is regularly entered after substituted service, it may still be set aside where a triable issue is raised and the defendant's constitutional right to be heard is at stake.
Court orders
#- 1.Ms. Selina Egesa & Company Advocates granted leave to come on record for the defendants after judgment
- 2.The ex parte judgment delivered by Hon. C. Yano J. on 15th February 2018 and the decree issued thereon on 21st February 2018 reviewed and set aside
- 3.Defendants granted leave to file their defence to the plaintiff's claim and defend the suit
- 4.Defendants' defence to be filed and served within thirty (30) days
- 5.Defendants to pay the plaintiff thrown away costs of Kshs. 30,000/= within thirty (30) days
- 6.Costs in the application to abide the outcome of the suit
- Jurisdiction invoked
- Inherent jurisdiction and Civil Procedure Rules, Order 10 Rule 11 (setting aside ex parte judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oketch v Birdee & another (Environment & Land Case 281 of 2017) [2025] KEELC 3050 (KLR)", Case Analysis (2025). Not stated in the judgment (formerly determined by Hon. C. Yano J. on 15th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3050/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.