Kili v Maiyo & 4 others (Environment and Land Case E014 of 2023) [2025] KEELC 5516 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default land judgment because the plaintiff could not prove the process server was licensed or that all defendants were served.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was properly served with summons and pleadings
The applicant was not proved to have been properly served; the plaintiff failed to show the process server held an active licence, and service was effected on only two of the defendants
The court examined the Affidavit of Service sworn by Kemei Cheptei on 27th April 2023 and found no sufficient evidence that the process server was licensed at the material time. It also noted that service was purportedly effected only on the 1st and 2nd defendants despite the decree running against all defendants, and that Order 5 of the Civil Procedure Rules requires service on each defendant.
Whether the ex parte judgment of 14th November 2024 was regularly obtained
The judgment was irregular and ought to be set aside
Applying James Kanyiita Nderitu and Yooshin Engineering, the court held that where service was not properly effected the resulting default judgment is irregular and must be set aside as a matter of right, regardless of whether the defendant has a defence. The court found the judgment technical in the sense described in Kanwal Sarjit Singh Dhiman.
Legal principles established
#- A default judgment entered against a defendant not served or improperly served is irregular and must be set aside ex debito justitiae as a matter of right, without conditions
- The setting aside of an ex parte judgment is a discretionary exercise aimed at avoiding injustice, not at assisting a party who deliberately obstructed or delayed justice
Court orders
#- 1.The ex parte judgment entered on 14th November 2024 and the consequential orders are set aside
- 2.The 1st defendant/applicant to file and serve her Statement of Defence and counterclaim, if any, within 14 days from the date of the ruling, failing which the orders shall automatically lapse
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7 and Order 22 Rule 22(1) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kili v Maiyo & 4 others (Environment and Land Case E014 of 2023) [2025] KEELC 5516 (KLR)", Case Analysis (2025). Not stated in the judgment (suit land Nandi/Kombe/745). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5516/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.