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ELCAllowed· [2025] KEELC 5042 (KLR)

Moronge v County Government of Homabay & 3 others (Environment & Land Petition 1 of 2023) [2025] KEELC 5042 (KLR)

Environment and Land Court
18 June 2025
2,968 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 against Homa Bay County because email service was unproven and government-specific procedures were ignored.

What this practically means

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Executive summary

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The applicant, through the County Attorney of Homa Bay County, applied under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules to set aside a default judgment delivered on 15th May 2024 and to be given leave to defend the petition. The applicant asserted it was never served with the summons or petition and only learned of the matter upon encountering a Warrant of Attachment dated 12th February 2025 and a Proclamation Notice dated 14th February 2025. It further contended that the petitioner had not obtained a Certificate of Costs or Certificate of Order against the Government as required by Section 21 of the Government Proceedings Act, and that the trespass claim lacked evidentiary support. The petitioner, through her advocate, maintained that service was effected by email on 6th October 2023 in accordance with Order 5 Rule 22B and that the respondents slept on their rights. The court found that the affidavits of service proved only that emails were sent, not delivered, and that in any event the petitioner never sought leave of the court under Order 10 Rule 8 before default judgment against the Government. Execution also failed to comply with Section 21 of the Government Proceedings Act, no certificate of order against the Government having been obtained. The court found a triable issue in the applicant's assertion that the petitioner holds no interest in the suit parcel, and held the petitioner would suffer no prejudice not compensable by costs. The judgment of 15th May 2024 was set aside; the applicant was given 14 days to file its replying affidavit, the petitioner 14 days for a supplementary affidavit, each party to bear own costs, with mention on 29th July 2025.

Key legal issues

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01

Whether service of the petition and summons on the applicant was properly effected by email

Holding

Service was not proved; the affidavits of service showed only that emails were sent, not delivered

Reasoning

Order 5 Rule 22B(2) requires proof of a delivery notification for email service. The affidavits of service attached only copies of emails sent and notices, with no evidence of delivery. The court noted emails may lie undelivered in a provider's system or be returned as failed delivery, and such situations do not constitute email delivery.

p. 3
02

Whether the default judgment was irregular for want of leave under Order 10 Rule 8

Holding

The judgment was irregularly entered because the petitioner never sought leave of the court before judgment against the Government

Reasoning

Order 10 Rule 8 prohibits entry of default judgment against the Government without leave, on an application served not less than seven days before the return date. The record contained no evidence that the petitioner sought such leave prior to judgment against the applicant and 4th respondent, rendering the judgment irregular.

p. 4
03

Whether execution against a county government complied with Section 21 of the Government Proceedings Act

Holding

The petitioner did not obtain a certificate of order against the Government as required before execution

Reasoning

Section 21(1)-(3) prescribes a mandatory procedure: after 21 days from judgment, a certificate of order against the Government must issue and be served on the Attorney-General, whereafter the accounting officer is statutorily obliged to pay. Section 21(4) bars execution and attachment against Government property. The petitioner furnished no certificate of order against the Government, so the attachment and proclamation were irregular.

p. 5
04

Whether the applicant has a defence on merit

Holding

Yes; the assertion that the petitioner has no interest in the suit parcel raises a triable issue

Reasoning

The court examined the draft replying affidavit and found the applicant asserts that, per its records, the petitioner holds no interest in the suit parcel. This constitutes a triable issue the court cannot gloss over, satisfying it that a possible defence on merit exists.

p. 5

Legal principles established

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  • A default judgment entered against a party not properly served is irregular and must be set aside as a matter of right
  • Decrees against the Government can only be enforced after issuance of a certificate of order against the Government under Section 21(1) and (3) of the Government Proceedings Act; execution and attachment are barred by Section 21(4)
  • Email service is effected only when the sender receives a delivery confirmation; proof of sending alone does not establish service
  • No judgment in default of appearance may be entered against the Government without leave of the court under Order 10 Rule 8

Court orders

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  1. 1.The judgement dated and delivered on the 15th May 2024 is hereby set aside
  2. 2.The Applicant is granted 14 days to file and serve its replying affidavit to the Petition
  3. 3.The Petitioner has the usual 14 days to file a Supplementary Affidavit if any
  4. 4.Mention on 29th July 2025
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Order 10 Rule 11 and Order 50 Rule 4 of the Civil Procedure Rules 2010

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, "Moronge v County Government of Homabay & 3 others (Environment & Land Petition 1 of 2023) [2025] KEELC 5042 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5042/eng@2025-06-18

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