Mohamed & 10 others (Suing Thro’ and Attorney and/or Administrator of Bdulrehman Abdillahi Omar) v Hamisi & 11 others (Environment and Land Case E016 of 2024) [2025] KEELC 6502 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether sufficient grounds existed to set aside the ex parte judgment of 18/3/2025
No. Service of summons was proved by affidavits of service on the record, the Defendants' denial was via their counsel's affidavit (hearsay) rather than their own affidavits, and no draft defence or triable issue was disclosed.
The court applied the regular/irregular default judgment distinction from James Kanyiita Nderitu. Here service was proved through affidavits of service facilitated by local administration, so the judgment was regular. The applicants' denial of service came only through their advocate's affidavit, which the court would not accept as personal evidence of service. Further, the Defendants filed no draft defence and made only general reference to a related suit, ELC 13 of 2021, without demonstrating its relevance to the parties or subject matter.
Legal principles established
#- The distinction between regular and irregular default judgments: an irregular default judgment (against an unserved defendant) is set aside as a matter of right, while a regular default judgment is set aside at the court's judicial discretion
- Once service is proved it is deemed effective unless discredited through cogent evidence; bare denials, especially through counsel's affidavit rather than the party's own, will not suffice
- The court cannot exercise its discretion to set aside default judgment in a vacuum; the applicant must show an arguable defence or triable issue
Court orders
#- 1.The Defendants' Notice of Motion dated 7/4/2025 seeking to set aside the ex parte judgment delivered on 18th March 2025 is dismissed
- 2.Costs of the application awarded to the Plaintiffs
- 3.The file shall be closed
- Jurisdiction invoked
- Articles 48, 50 and 159(2)(d) of the Constitution; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 10 others (Suing Thro’ and Attorney and/or Administrator of Bdulrehman Abdillahi Omar) v Hamisi & 11 others (Environment and Land Case E016 of 2024) [2025] KEELC 6502 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 7/4/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6502/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.