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ELCDismissedNot stated in the judgment· [2025] KEELC 4843 (KLR)

Meritei v Oduor & 61 others & 2 others (Environment & Land Case E002 of 2021) [2025] KEELC 4843 (KLR)

Environment and Land Court
26 June 2025
LKL. Komingoi
2,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court refused to undo a land judgment against 61 defendants because they never showed the court what defence they would have raised.

What this practically means

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Executive summary

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The 1st to 61st Defendants moved the court by Notice of Motion dated 2nd December 2024 seeking stay of execution, setting aside of the judgment delivered on 14th November 2024, and leave to enter appearance and file a defence out of time, with leave for Okeyo Ochiel & Co. Advocates to come on record. They argued they were never served with the pleadings, physically or by substituted service, that the Plaintiff was the complainant in Nairobi Milimani CMCR No. 1471 of 2012 in which they regularly attended court and could easily have been served, that they were condemned unheard contrary to natural justice, and that the criminal acquittal constituted new information meriting review under Order 45 Rule 1 and Section 80 of the Civil Procedure Act. The Plaintiff/Respondent opposed, asserting lawful substituted service by newspaper advertisement under Order 5 Rule 17 after failed physical service, that he did not know the defendants personally, that a criminal case does not bar civil proceedings under Section 193A of the Criminal Procedure Code, and that no draft defence was exhibited. The court framed three issues: whether the judgment should be set aside, whether leave to defend out of time should issue, and costs. Holding the judgment regularly obtained after lawful substituted service, finding no draft defence demonstrating a triable issue, and relying on Shah v Mbogo and Patel v E.A Cargo Handling Services Ltd, the court declined to disturb the judgment, found the applicants not credible on lack of notice, and dismissed the motion with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the judgment of 14th November 2024 obtained after substituted service should be set aside

Holding

The application failed; the judgment was regularly obtained after lawful substituted service under Order 5 Rule 17, and the applicants did not demonstrate a defence on the merits

Reasoning

Service had been effected by newspaper advertisement after leave of the court under Order 5 Rule 17, rendering the judgment regular. A regular judgment will not be set aside absent a defence on the merits raising a triable issue. The applicants annexed no draft defence, and documentary evidence already evaluated (the document examiner's findings on the sale agreement) gave the court no new material. The court was not convinced the applicants were unaware of the suit.

p. 4
02

Whether leave should issue for the 1st to 61st Defendants to file a defence out of time

Holding

Refused, as no draft defence was exhibited to show a triable issue

Reasoning

The applicants sought leave to file a defence out of time but did not annex even a draft defence for the court to assess whether a prima facie or triable defence existed. Following Patel v E.A Cargo Handling Services Ltd, a defence on the merits means a triable issue raising a prima facie defence; without a glimpse of the proposed defence the court could not exercise its discretion in their favour.

p. 4

Legal principles established

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  • Where a judgment is regular, the court will not usually set it aside unless satisfied there is a defence on the merits raising a triable issue
  • The discretion to set aside an ex parte judgment is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who obstruct or delay justice

Court orders

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  1. 1.The Notice of Motion dated 2nd December 2024 is dismissed with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 51 Rule 3
  • Civil Procedure RulesOrder 5 Rule 17
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 80
  • Criminal Procedure CodeSection 193A
  • Criminal Procedure CodeSection 215
  • Penal CodeSection 394
  • Penal CodeSection 245 as read with Section 348

Cases cited (6)

  • Esther Ngonyo Gitara v Dominic Chege Gitari
  • Wachira & another v Ngaruiya & another
  • Shah v Mbogo & Another
    [1967] EA 116
  • Kitamaiyu Limited v China Gansu International Corporation for Economic Technical Corporation Company Limited
    [2020] eKLR
  • Mwaro & Anor v Charo & 5 others
    [2022] KEELC 1547 [KLR]
  • Patel v. E.A Cargo Handling Services Ltd.
    [1974] EA 75
Jurisdiction invoked
Inherent jurisdiction and discretion under Order 10 Rule 11, Order 22 Rule 25 and Order 51 Rule 3 of the Civil Procedure Rules; review under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (invoked by Applicants)

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, "Meritei v Oduor & 61 others & 2 others (Environment & Land Case E002 of 2021) [2025] KEELC 4843 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4843/eng@2025-06-26

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