United Way Kenya Limited & another v Mereu & 5 others (Environment & Land Case 959 of 2017) [2025] KEELC 3246 (KLR)
The bottom line
#A Kenyan court set aside a default land judgment because defendants were never properly served, allowing them and 28 others to finally defend the case.
What this practically means
#Executive summary
#Key legal issues
#Setting aside of regular default judgment
The judgment of 3rd October 2022 was a regular default judgment, but it was set aside conditionally because the defendants were not properly notified of the progress of the case and their defence raises triable issues.
Relying on James Kanyiita Nderitu, the court found the default judgment regular since the defendants had been served but failed to appear or file defence. The discretion is nonetheless unfettered and judicial. The court record showed that counsel had ceased to act and lost contact with the defendants, yet notices were consistently served on Kituo Cha Sheria, not the advocate or defendants personally. Service being defective, the defendants were unaware of the progress of the case, and their draft defence raises serious triable issues meriting determination on the merits, subject to throwaway costs.
Joinder of the 7th to 34th intended defendants
The intended defendants were joined as they demonstrated a proximate interest in the suit property entitling them to be principal parties.
Having allowed the reopening of the case, the court held that the applicants claim similar interests to the 1st to 6th Defendants over the suit property, having occupied it with their forefathers before 1990 and being faced with eviction under the judgment. Their joinder serves effective and complete adjudication and avoids proliferation of litigation, with no prejudice shown to the plaintiffs.
Service upon counsel/organisation
Service on Kituo Cha Sheria after Carol Mburugu had left did not amount to effective service on the defendants.
The advocate who took over the defendants' case worked at Kituo Cha Sheria at the time, but the organisation is not a law firm and she had since left and lost contact with the defendants. Notices continued to be served on the organisation, validating the defendants' assertion of ignorance of the case progress. Justice under Article 159(2) and sections 1A and 1B of the Civil Procedure Act required that litigants not be driven from the seat of justice unheard.
Legal principles established
#- A regular default judgment may be set aside in the court's unfettered but judicial discretion, weighing reason for default, delay, triable issues, prejudice and the interest of justice.
- Notices meant for a defendant ought to be served upon the advocate personally handling the matter, or the defendant personally, not an organisation with which the advocate was formerly associated.
Court orders
#- 1.The judgment delivered on 3rd October 2022, the resultant decree and all consequential orders set aside in its entirety
- 2.The Defendants granted conditional leave to defend the suit
- 3.The 1st to 6th Defendants to pay throw away costs of Kshs. 50,000/= to the Plaintiffs within 30 days of the ruling
- 4.The 1st to 6th Defendants to file and serve their statement of defence within 30 days with list of witnesses, witness statements and list and bundle of documents
- 5.The 7th to 34th Defendants/Applicants enjoined as Defendants
- 6.The 7th to 34th Defendants to file and serve their statements of defence within 30 days with list of witnesses, witness statements and list and bundle of documents
- 7.Plaintiffs granted automatic right to respond to the Defendants' statements of defence within 15 days after service, thereafter listing for pre-trial
- 8.Costs of the applications shall be in the cause
- Jurisdiction invoked
- Article 159(1)(d) of the Constitution; Orders 1, 10, 12, 42, 50 and 51 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Way Kenya Limited & another v Mereu & 5 others (Environment & Land Case 959 of 2017) [2025] KEELC 3246 (KLR)", Case Analysis (2025). Kajiado ELC No. 959 of 2017 (formerly Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3246/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.