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ELCPartially AllowedNot stated in the judgment (Originating Summons dated 23rd November 2023)· [2025] KEELC 3465 (KLR)

Kanyua v Kariuki & another (Environment & Land Case E023 of 2023) [2025] KEELC 3465 (KLR)

Environment and Land Court
28 April 2025
COChristine Ochieng
2,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a default judgment won through a newspaper advert, ruling the landowners deserved their day in court.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Christine Ochieng, J) determined a Notice of Motion dated 18th November 2024 by the defendants seeking to set aside a default judgment of 30th May 2024, delivered after substituted service by newspaper advertisement, which had declared the applicant the adverse-possession owner of LR No. 209/10715. The defendants, registered proprietors in occupation since 1989, said they only learned of the suit when the applicant attempted to enter the property in November 2024 during excavation for a perimeter wall. The applicant opposed through a preliminary objection arguing the court was functus officio and that the application offended the doctrine of laches. The court framed two issues: functus officio and whether to set aside the default judgment. Relying on the Supreme Court's adoption of the Pretorius exposition in Raila Odinga, it held the doctrine does not bar an application to set aside default judgment, since the defendants sought to set aside rather than vary the judgment. Applying Order 10 Rule 11 and the regular/irregular judgment distinction in James Kanyiita Nderitu, the court found the defendants' failure to see the newspaper advertisement plausible, the application filed within six months without inordinate delay, and no demonstrated prejudice. Invoking Articles 25 and 50 on the non-derogable right to a fair hearing, it set aside the default judgment, decree and consequential orders including the letter of 4th July 2024, allowed the defendants fourteen days to file their response, disallowed the preliminary objection, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the court is functus officio

Holding

The court is not functus officio; setting aside a default judgment is not varying the judgment's terms

Reasoning

The court adopted the Pretorius exposition of the functus officio doctrine approved by the Supreme Court in Raila Odinga. It distinguished between varying a judgment's terms and setting it aside entirely. Because the defendants sought only to set aside the default judgment and be heard, the doctrine did not bar the application.

p. 4
02

Whether the default judgment should be set aside

Holding

Yes; the judgment was set aside as the defendants were registered proprietors, never saw the substituted service advertisement, and acted promptly on learning of the judgment

Reasoning

Relying on Order 10 Rule 11 and the regular/irregular default judgment distinction in James Kanyiita Nderitu, the court found the applicants' failure to see the newspaper advertisement a plausible explanation, the application filed within six months without inordinate delay, no prejudice demonstrated by the applicant, and the right to a fair hearing under Articles 25 and 50 compelling in favour of allowing the registered proprietors to defend their land.

p. 5

Legal principles established

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  • A court is not functus officio in dealing with an application to set aside a default judgment
  • An irregularly entered default judgment (against a defendant not served or properly served) may be set aside as of right

Court orders

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  1. 1.The default judgment delivered on 30th May 2024 is set aside, including the resultant decree dated 5th June 2024, all other consequential orders and the letter dated 4th July 2024
  2. 2.The Respondents/Applicants to file and serve their response to the Originating Summons within fourteen (14) days from the date of the ruling
  3. 3.The Notice of Motion application dated 18th November 2024 is allowed
  4. 4.The Notice of Preliminary Objection dated 17th February 2025 is disallowed
  5. 5.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application under Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules

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, "Kanyua v Kariuki & another (Environment & Land Case E023 of 2023) [2025] KEELC 3465 (KLR)", Case Analysis (2025). Not stated in the judgment (Originating Summons dated 23rd November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3465/eng@2025-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.