Oketch v Hussein & 3 others (Environment & Land Case 2141 of 2007) [2025] KEELC 4018 (KLR)
The bottom line
#A Kenyan court set aside a 2021 default judgment in a land dispute, letting the defendants finally present their defence, but ordered them to pay the plaintiff's costs first.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment of 17th June 2021 was regular or irregular
The court found the judgment regular, being satisfied that service of summons and pleadings was properly effected.
The applicant alleged service was defective because it was effected on a wrong name (Hassan Ali Hussein) and wrong address. The court found the postal address P.O. Box 220 Wajir appears in the title and official search and was unrefuted. The claim that the correct name is Hassan Mohammed Adam was unsubstantiated, with no documents proving the alleged paternal relationship.
Whether the court should exercise its discretion to set aside the regular default judgment
The court exercised its discretion to set aside the judgment because the draft defence and counterclaim raises triable issues that can only be tested at trial.
Applying the Shah v Mbogo principle that discretion exists to avoid injustice from accident, inadvertence or excusable mistake, the court held that doing justice required giving all parties a chance to ventilate their claims, even though the defence was an afterthought filed without leave. Costs thus far were awarded to the plaintiff.
Status of the draft defence and counterclaim filed without leave
The draft defence and counterclaim dated 28th October 2024 was deemed duly filed subject to payment of requisite filing fees.
Although no prayer for leave to file the defence was sought, making it an afterthought, the court found it raised triable issues and deemed it filed, subject to payment of filing fees, in the interest of justice.
Legal principles established
#- A regular ex parte judgment may be set aside in the court's discretion to avoid injustice, considering a draft defence that raises triable issues.
- An irregular judgment, obtained without proper service, ought to be set aside ex debito justitiae.
Court orders
#- 1.The judgment delivered by this court on 17th June, 2021 is hereby set aside
- 2.The draft statement of defence and counter claim dated 28th October, 2024 is deemed as duly filed subject to payment of the requisite filing fees
- 3.The plaintiff/respondent is entitled to costs of this application to be borne by the 2nd defendant/applicant, to be paid before the matter is set down for hearing
- Jurisdiction invoked
- Articles 48, 50(1) and 159 of the Constitution; Sections 1A, 1B, 3A Civil Procedure Act; Order 8 Rule 3, Order 10 Rule 11 and Order 51 Rules 1 and 3 Civil Procedure Rules; Section 28 Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oketch v Hussein & 3 others (Environment & Land Case 2141 of 2007) [2025] KEELC 4018 (KLR)", Case Analysis (2025). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4018/eng@2025-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.