Durahard Limited v Mbarak & 3 others (Environment and Land Case E043 of 2023) [2025] KEELC 5058 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an eviction judgment because defendants were served through a tiny newspaper ad they never saw, restoring their right to defend the suit.
What this practically means
#Executive summary
#Key legal issues
#Validity of substituted service and its effect on an ex parte judgment
Although the publication complied with the court's order of 05.06.2023 (which did not specify the newspaper), the advertisement was so small it may have passed unnoticed; the defendants should be heard now that they are available.
The court accepted that the service was technically in conformity with the leave granted, since no particular newspaper was specified. However, applying Phillip Mutiso Mulalya, it held that the purpose of service is to notify the defendant of the suit; the tiny classified advert created only a rebuttable presumption of notice, which the defendants rebutted by saying they never saw it. Because they were now available, a hearing on the merits was preferred.
Whether the draft defence raises triable issues
The proposed defence was not entirely frivolous, so the defendants ought to be given a chance to be heard.
Following CMC Holdings Ltd v James Mumo Nzioki and Tree Shade Motors, the court was obliged to consider the annexed draft defence. It found the defence raised triable issues on the claim for eviction and ownership, warranting unconditional leave to defend rather than maintaining a default judgment obtained without effective notice.
Costs of the application
Costs of the application were made costs in the cause because the suit would proceed de novo.
Although costs generally follow the event under the proviso to Section 27 of the Civil Procedure Act, the court reasoned that since the suit would be heard afresh, no party should immediately bear the costs of the application; the appropriate order was costs in the cause.
Legal principles established
#- In an application to set aside ex parte judgment, the court must consider both the reasons for non-appearance and whether the draft defence raises triable issues.
- Substituted service rests on a rebuttable presumption that the defendant will see the advertisement; if the defendant was not thereby made aware of the suit, that is a reasonable ground for setting aside the ex parte judgment.
- Where a draft defence tendered with an application to set aside raises a reasonable defence, the defendant should be given leave to defend.
Court orders
#- 1.The ex parte judgment dated 12.06.2024 is set aside together with all consequential orders
- 2.The defendants are granted unconditional leave to defend the plaintiff's suit
- 3.The defendants are granted leave of 14 days to file and serve their defence and any other pleading
- 4.The plaintiff is granted corresponding leave of 14 days from service to file its response to the defence
- 5.Costs of the application shall be in the cause
- 6.The suit shall be mentioned on 18.09.2025 for pretrial directions
- Jurisdiction invoked
- Sections 1A, 3A of the Civil Procedure Act and Order 10 Rule 11 and Order 22 Rule 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Durahard Limited v Mbarak & 3 others (Environment and Land Case E043 of 2023) [2025] KEELC 5058 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5058/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.