Enforce Limted v Muntet & another (Environment & Land Case E008 of 2023) [2025] KEELC 4415 (KLR)
The bottom line
#A Kenyan court set aside a default judgment on conditions, confirming defendants can still get their day in court if they act fast.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the advocate needed leave to come on record after judgment under Order 9 Rules 9, 10 and 11
- 2.Whether the judgment of 30th January 2025 was regular or irregular (whether the 1st Defendant was effectively served)
- 3.Whether the court should, on such terms as are just, set aside the regular judgment
- 4.Whether the draft Defence raises triable issues
- 5.Whether the application was filed timeously and the prejudice each party would suffer
Key legal issues
#Regularity of the ex parte judgment
The judgment was regular because the 1st Defendant was served by advertisement in the Daily Star and personally appeared in court on 13th December 2023 seeking adjournment
The court found substituted service by advertisement in the Daily Star of 20th April 2023 effective, and the court record showed the 1st Defendant appearing in person on 13th December 2023 seeking time to instruct an advocate, after which he took no further steps. A defendant aware of the suit cannot claim ignorance, and under Order 10 rule 9 the Plaintiff was entitled to set the suit down for exparte hearing, rendering the judgment regular.
Whether a regular judgment may nonetheless be set aside
Yes; the court has a wide discretion under Order 10 Rule 11 to set aside a regular judgment on such terms as are just, exercisable to avoid injustice
Relying on Order 10 Rule 11 and the Shah v Mbogo line of authorities, the court held that although the judgment was regular, the discretion to set aside exists to prevent hardship from inadvertent mistakes and is not fettered by self-imposed conditions, provided the conditions imposed are just to all parties.
Whether the draft Defence raises triable issues
Yes, the draft Defence raises triable issues warranting trial
Applying Job Kiloch and Sebei District Administrator v Gasyali, the court held that a defence need not be one that would succeed but only raise matters requiring interrogation at full trial. The draft Defence attached to the application met that threshold, justifying an opportunity to be heard despite the regularity of the judgment.
Timeliness of the application
The application was filed promptly, with no delay
Judgment was delivered on 30th January 2025 and the application filed on 11th February 2025, an interval the court found showed promptitude, supporting the exercise of discretion in the applicant's favour.
Legal principles established
#- A default judgment entered against a defendant who was not served or properly served is irregular and must be set aside as a matter of right, without inquiry into triable issues or delay
- Even where a judgment is regular, the court retains a wide judicial discretion to set it aside on just terms in the interest of justice
- A defence need not be one that would succeed; it suffices that it raises bona fide triable issues warranting trial
Court orders
#- 1.Application allowed entirely in terms of prayers Nos 4 and 5
- 2.Judgment of 30th January 2025 entered against the 1st Defendant varied/set aside and leave granted to the 1st Defendant to file his statement of Defence and requisite pleadings out of time in terms of the annexed draft Defence
- 3.Costs of the application to the Plaintiff/Respondent
- 4.1st Defendant to pay the Plaintiff/Respondent throw-away costs of Ksh 30,000/= before the next court appearance date
- 5.Defence to be filed within 14 days, failing which the orders granted will automatically lapse
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers under sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rule 11 / Order 12 Rule 7 of the Civil Procedure Rules
Relief refused
#Prayer 2 - leave for advocate to come on record after judgment under Order 9 Rule 9
The provision applies only where a party had been represented by an advocate and wishes to change advocate after judgment; the 1st Defendant never entered appearance through an advocate
Costs of the application borne by the Plaintiff/Respondent (prayer 6)
Court awarded costs to the Plaintiff/Respondent instead
Costs
Costs of the application to the Plaintiff/Respondent; the 1st Defendant/Applicant to pay the Plaintiff/Respondent throw-away costs of Ksh 30,000/= before the next court appearance date.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Therefore, the judgement entered herein was a regular judgement.
the court still retains the wide discretion to set the same aside depending on the circumstances of the case, and it may do so on conditions that are just.
The court has considered the DRAFT Defence, attached to the Application and it indeed raises triable issues. , and the 1st Defendant/ Applicant should be allowed to advance it.
Therefore, the application was filed promptly and there was no delay at all in filing the instant application.
Consequently, this court finds and holds that the Application herein is merited, and the same is allowed entirely in terms of prayers Nos 4 and 5 with costs to the Plaintifi/ Respondent.
The Defence to be filed within the next 14 days from the date hereof, failure of which, the orders granted herein will automatically lapse.
Issues in the judgment
#Internal inconsistency in citation of Patel v Cargo Handling Services: rendered as (1974) EA 75 in submissions and paragraph 40 but as (1975) E.A. 75 in James Kanyiita Nderitu quote
Case name of the Plaintiff/Respondent never fully stated; parties referred to only through the Director's name and 'Plaintifi/Respondent'
Decided cases name is misspelled variously as 'Chemwolo', 'Chemowolo' and 'Kubende'/'Kubede'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enforce Limted v Muntet & another (Environment & Land Case E008 of 2023) [2025] KEELC 4415 (KLR)", Case Analysis (2025). Not stated in the judgment (Narok Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4415/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.