Mbogo v Muigai; Ager (Third party) (Environment and Land Case Civil Suit 694 of 2017) [2025] KEELC 6643 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment against a third party served by newspaper advert, but ordered a judgment debtor to pay Kshs 500,000 monthly installments.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment against the Third Party should be set aside
Yes. The judgment was a regular default judgment (service by court-sanctioned substituted service), but the Third Party's uncontroverted claim that he did not see the advert, absence of inordinate delay and existence of triable issues on rescission of the sale agreement justified setting it aside
Order 1 Rule 19 permits setting aside judgments against defaulting third parties on just terms. Guided by the regular/irregular distinction in James Kanyita Nderitu, the court treated the judgment as regular and exercised discretion. Substituted service carries only a rebuttable presumption of receipt, uncontradicted here. The Motion was filed promptly after the Third Party learned of the judgment, and a defence on rescission of the sale agreement raises bona fide triable issues.
Whether the Judgment Debtor should be allowed to pay the decretal sum by installments
Yes, but on the court's terms: a Kshs 1,000,000 lump sum up front and monthly installments of Kshs 500,000, given his partial payment of Kshs 1.5 million already accepted by the Decree Holder
Under Order 21 Rule 12(2), installments may be ordered for sufficient cause, considering bona fides, financial position and conduct. The debtor produced no documentary proof of incapacity, and his without-prejudice purchase offer could not be used against him. However, his payment of Kshs 1.5 million in three accepted installments and willingness to continue justified indulgence, tempered to avoid prejudicing the Decree Holder.
Legal principles established
#- Where a default judgment is regular, it may be set aside at the court's discretion considering reasons for default, delay, triable issues and prejudice; an irregular judgment is set aside as of right
- Substituted service by newspaper advertisement rests on a rebuttable presumption that the defendant saw the advert; an uncontroverted assertion that it was not seen can be a reasonable explanation warranting setting aside
- Failure to annex a draft defence to a set-aside application is not fatal where the nature of the defence is outlined in the supporting affidavit
- Without prejudice offers are privileged and cannot be relied on as evidence of financial capacity or bad faith
- A judgment debtor seeking payment by installments must prove financial incapacity, ordinarily by documentary evidence such as bank statements and income records
Court orders
#- 1.The Judgment Debtor/Defendant is granted leave to pay the balance of the decretal sum in monthly installments of Kshs 500,000 per month, with effect from 1st November, 2025, with a lumpsum amount of Kshs 1,000,000 to be paid on or before 15th October, 2025 until full payment
- 2.The Judgment Debtor/Defendant shall bear the costs of the Motion dated 30th October, 2024
- 3.The Judgment and Decree entered as against the Third Party on 15th February, 2024 be and is hereby set aside
- 4.The Third Party is granted 14 days to file his Defence to the Judgment Debtor/Defendant's claim against him
- 5.The Claim by the Judgment Debtor as against the Third Party to be set down for hearing on priority basis
- 6.Costs of the Third Party's Motion shall abide the cause
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1, Order 10 Rule 11 and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogo v Muigai; Ager (Third party) (Environment and Land Case Civil Suit 694 of 2017) [2025] KEELC 6643 (KLR)", Case Analysis (2025). Not stated in the extract (Environment & Land Case; judgment of 15th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6643/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.