Keya v Aloo (Sued as the Administrator of the Estate of the Late Moses Kitagwa Allo) (Enviromental and Land Originating Summons E005 of 2024) [2025] KEELC 7417 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was served and whether his explanation for non-participation was credible
The court found service was proved by two detailed affidavits of service and the explanation was not credible
The process server swore two affidavits detailing how and where he located the applicant and effected service on 7th February 2025 and 12th/13th June 2025. The applicant gave no reason to doubt the process server and did not seek to cross-examine him. The court therefore found service proved and the explanation for non-participation not credible.
Whether the ex parte proceedings should nonetheless be set aside
Yes; despite lack of credible explanation, the draft Replying Afidavit raised triable issues and the plaintiff's prejudice was compensable by costs
The court weighed the plaintiff's prejudice (having testified and closed his case) against the applicant's draft Replying Afidavit, which raised triable issues. Guided by the overriding objective of substantive justice, the court exercised its discretion in favour of the applicant, imposing thrown away costs as the compensatory measure.
Legal principles established
#- An applicant for setting aside ex parte proceedings must explain the non-participation, demonstrate a good defence raising triable issues, and show no prejudice to the other party
- Uncontroverted affidavits of service by a process server, not tested by cross-examination, establish service
Court orders
#- 1.The ex parte proceedings taken herein are set aside
- 2.The draft Replying Afidavit is deemed the duly filed Replying Afidavit upon payment of the requisite court filing fee, to be paid within 14 days
- 3.Thrown away costs of Kshs 20,000/= awarded to the Plaintiff
- 4.Matter listed for directions on the Originating Summons on 10/12/2025
- Jurisdiction invoked
- Order 51 Rule 15 of the Civil Procedure Rules, sections 1, 1A and 3 of the Civil Procedure Act and Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keya v Aloo (Sued as the Administrator of the Estate of the Late Moses Kitagwa Allo) (Enviromental and Land Originating Summons E005 of 2024) [2025] KEELC 7417 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7417/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.