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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 4086 (KLR)

Lua & another v Nzioka & 7 others (Environment & Land Case E011 of 2023) [2025] KEELC 4086 (KLR)

Environment and Land Court
29 May 2025
EOE. O. Obaga
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a default judgment because the defendants' lawyer hadn't been paid, allowing them to finally file their defence.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (E. O. Obaga, J) on a Notice of Chamber Summons dated 8th August 2024 in which the Defendants/Applicants sought leave for their advocate to cease acting for the 1st to 5th Defendants, and setting aside of an interlocutory judgment entered against the 6th to 8th Defendants on 2nd May 2024, with leave to file a defence. Prayer 1 was withdrawn on 9th December 2024 after the advocate's fees were paid. The Respondents opposed, arguing the application rested on wrong provisions, service was admitted, non-payment of fees was no excuse, no draft defence was attached, and they would be prejudiced. The court framed a single issue: whether the interlocutory judgment should be set aside. Relying on the Court of Appeal's decision in James Kanyita Nderitu v Marie Philotas Ghika & another [2016] eKLR, the court found the judgment was regular since the defendants were served and had entered appearance through counsel but simply failed to file a defence. Nonetheless, exercising the unfettered discretion under Order 10 Rule 11, the court held the reason for default (non-payment of fees) understandable, the delay of about three months not inordinate, the defendants' occupation of the suit property since 2014 raised triable issues despite the absence of a draft defence, and the Respondents would suffer no prejudice. The court set aside the interlocutory judgment, granted leave to file a defence within 14 days, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the regular interlocutory judgment should be set aside

Holding

Set aside; the reason for default was understandable, the delay was not inordinate, no draft defence was annexed but the defence raises triable issues given the defendants' long occupation of the suit property, and the respondent would suffer no prejudice.

Reasoning

The court applied the James Kanyita Nderitu test for setting aside regular default judgments: reason for failure to file defence, length of delay, whether triable issues are raised, and prejudice. Failure to pay fees explained the default; occupation since 2014 showed triable issues on the defendants' presence on the land; the roughly three-month delay was not inordinate and no prejudice to the respondents was shown.

p. 3
02

Whether there was valid service of summons to enter appearance

Holding

Service was effected; the applicants had instructed an advocate who entered appearance, so the judgment was regular.

Reasoning

The court found it inconsistent for the applicants to deny service when their advocate had filed a memorandum of appearance on their instruction. It held there was service, entry of appearance, but failure to file defence, making the entry of judgment regular.

p. 2

Legal principles established

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  • Where a defendant was duly served and entered appearance but failed to file a defence, the resulting default judgment is regular and may be set aside under Order 10 Rule 11 in the court's discretion.

Court orders

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  1. 1.The interlocutory judgment entered on 2nd May, 2024 is set aside
  2. 2.The Applicants are granted leave to file their defence within 14 days
  3. 3.The costs of the application shall be in the cause
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (discretion to set aside regular default judgment)

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, "Lua & another v Nzioka & 7 others (Environment & Land Case E011 of 2023) [2025] KEELC 4086 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4086/eng@2025-05-29

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