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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 6019 (KLR)

Mulalya v Muathe & 2 others (Environment and Land Case Civil Suit 27 of 2017) [2025] KEELC 6019 (KLR)

Environment and Land Court
16 September 2025
1,998 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a KSh 14.5 million default judgment because the defendant was never properly served with summons.

What this practically means

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Executive summary

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The 1st defendant moved the court by notice of motion dated 5/03/2024 under Article 50 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rules 10 and 11 and Order 51 Rules 1 and 15 of the Civil Procedure Rules, seeking leave for Mbiriri Ngugi & Co. Advocates to come on record, setting aside of the interlocutory judgment of 8/03/2023 entered against him in default of appearance for Kshs. 14,555,000/-, and leave to defend the suit. He claimed he only learnt of the case on 15/02/2024 and that the returns of service were falsified. The plaintiff opposed, asserting regular service and that the motion, filed some 18 months post-judgment, was an abuse of process; the 2nd and 3rd defendants, registered proprietors following the judgment, opposed disturbing it. The court framed two issues. On the first, it held leave under Order 9 Rule 9 was unnecessary since the 1st defendant had never entered appearance. On the second, scrutiny of the return of service dated 17/02/2017 showed service on Christine Mutua, a Vivo Energy employee and not the 1st defendant's employee, casting doubt on the process server's conduct. The default judgment was therefore irregular and was set aside ex debito justitiae as a matter of right, without considering triable issues or delay. The judgment of 8/03/2023 was set aside, the 1st defendant given 21 days to file and serve pleadings and documents, and each party ordered to bear their own costs of the motion and respective costs of the suit. A mention date was fixed for pre-trial directions.

Key legal issues

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01

Whether leave was required for the incoming advocate to come on record post-judgment under Order 9 Rule 9

Holding

Leave was not required because the 1st defendant had never entered appearance; the relief was misplaced.

Reasoning

Order 9 Rule 9 governs change of advocate after judgment, aimed at preventing evasion of fees due to a previous advocate. Its mischief does not apply where no advocate was previously on record for the party. A party who has never entered appearance needs only file and serve a notice of appointment.

p. 3
02

Whether the judgment of 8/03/2023 was an irregular default judgment liable to be set aside as of right

Holding

Yes. Service of summons was effected not on the 1st defendant but on Christine Mutua, a Vivo Energy employee and not the 1st defendant's employee; the judgment was irregular and set aside ex debito justitiae.

Reasoning

The return of service dated 17/02/2017 shows service on Christine Mutua at a Shell Petrol Station in Tala, alleged to be the 1st defendant's employee. Her unchallenged affidavit confirms she was an employee of Vivo Energy, which leases the station from the 1st defendant. The plaintiff's later purported personal service of the judgment on 24/01/2024 cast doubt on the process server's conduct. The court was not convinced summons and pleadings were properly served, rendering the default judgment irregular and liable to be set aside as of right without considering triable issues or delay.

p. 4
03

Whether the draft defence raised triable issues or whether the application was time-barred

Holding

These considerations were irrelevant because the judgment was irregular; an irregular default judgment is set aside as of right.

Reasoning

Relying on James Kanyiita Nderitu, the court held that once a default judgment is found irregular, the court need not consider whether the defence raises a triable issue or whether there has been inordinate delay, since the party was condemned without notice or an opportunity to be heard.

p. 4

Legal principles established

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  • Where a default judgment is irregular (e.g. entered without proper service), it must be set aside ex debito justitiae as a matter of right, without regard to triable issues or delay.
  • Summons to enter appearance exists to give notice of the suit, anchored on Article 50, and no proceedings should be conducted to the detriment of a party in their absence.
  • Order 9 Rule 9 leave is unnecessary for a party who has never entered appearance; a notice of appointment suffices.

Court orders

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  1. 1.Leave sought for Mbiriri Ngugi & Co. Advocates to come on record held unnecessary; that relief was misplaced.
  2. 2.The judgment delivered on 8/03/2023 is set aside, with each party bearing their respective costs of the suit and of the notice of motion.
  3. 3.The 1st defendant has 21 days from the date of the ruling to file and serve his pleadings and all relevant documents.
  4. 4.A mention date shall be given for pre-trial directions.
Jurisdiction invoked
Article 50 of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 Rules 10 and 11 and Order 51 Rules 1 and 15 of the Civil Procedure Rules

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, "Mulalya v Muathe & 2 others (Environment and Land Case Civil Suit 27 of 2017) [2025] KEELC 6019 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6019/eng@2025-09-16

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