Harun (Trading as Nelson Harun & Company Advocates) v Kalu Works Limited & another (Enviromental and Land Originating Summons 181 of 2019) [2025] KEELC 3493 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment because the company was properly served and never provided a draft defence showing triable issues.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 9/4/24 should be set aside
The application was dismissed. The court entered a regular judgment because the 1st Defendant was represented by counsel and duly served throughout; the applicant neither annexed a draft defence raising triable issues nor satisfactorily explained the delay, and the receivership/administration of the company did not justify setting aside given that the ownership rights had been settled in 2014 and affirmed on appeal in 2017.
The court applied the regular/irregular distinction from James Kanyiita Nderitu. Service was evidenced by unchallenged returns of service and appearance entered in 2019 through counsel. For a regular judgment, the applicant had to show a meritable defence, absence of prejudice, and explanation for delay. No draft defence was annexed, which the court held was fatal. The receivership argument failed because it arose long after the ownership rights were determined in prior proceedings.
Whether the Plaintiff's application dated 1/10/24 should be granted
The application was overtaken by events and dismissed/spent, since the court had already directed inter partes hearing of the 1st Defendant's application on 10/9/24.
The Plaintiff sought to discharge, vary or set aside the order of 10/9/24 as an injunction. On the record, that order was merely a directions order for service, responses, further affidavits and submissions ahead of the inter partes hearing on 8/10/24. Given the directions already made and the subsequent disposal of the substantive application, nothing remained for determination.
Legal principles established
#- An irregular default judgment (against a defendant not served) is set aside as of right; a regular default judgment may be set aside only in the court's discretion considering meritable defence, prejudice and delay
- Failure to annex a draft defence to an application to set aside a regular default judgment is fatal to the application
Court orders
#- 1.The 1st Defendant's application dated 6/9/24 is unmerited and is hereby dismissed
- 2.The Plaintiff's application dated 1/10/24 is spent/dismissed
- 3.Any interim orders previously granted be and are hereby discharged
- 4.Each party to bear their own costs of the application
- Jurisdiction invoked
- Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harun (Trading as Nelson Harun & Company Advocates) v Kalu Works Limited & another (Enviromental and Land Originating Summons 181 of 2019) [2025] KEELC 3493 (KLR)", Case Analysis (2025). Not stated in extract (ruling on motions dated 6/9/24 and 1/10/24). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3493/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.