Rop v Soo & another (Environment and Land Case 55 of 2018) [2025] KEELC 7666 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 26th May, 2022 was regularly or irregularly entered
Both applicants were served with the pleadings; the judgment was a regular default judgment over which the court exercises discretion, not set aside as of right
The 1st Defendant admitted service and filed a Replying Affidavit on 1st October 2019. The 2nd Defendant, despite claiming he learned of the suit in March 2023, admitted in his affidavit that ill-health hampered his ability to respond, showing notice. An affidavit of service sworn by Vincent O. Ogutu on 12th July 2018 confirmed service on both Defendants. Under James Kanyiita Nderitu, only irregular default judgments are set aside ex debito justitiae.
Whether the regular default judgment should be set aside in the court's discretion
The court declined to exercise discretion in the Applicants' favour due to inordinate delay of about two years, failure to demonstrate sufficient cause, absence of a draft defence with triable issues, and prejudice to the Plaintiff
The 1st Defendant filed her application two years post-judgment and was under a duty to follow up the suit she knew of. The 2nd Defendant filed after two years and six months; his medical documents post-dated judgment, and he attached no draft defence. Setting aside the judgment would prejudice the Plaintiff, whose decree has been executed and title issued. The suit had already taken four years to determine.
Whether stay of execution could be granted
The court declined to consider stay of execution as the orders sought were tied to the dismissed applications
Both Applicants sought stay of execution pending the hearing and determination of their applications. Since the court could not assume or infer relief not properly sought, and the applications themselves were dismissed, stay could not issue. The court relied on Issa Ahmed on the object and purpose of pleadings in declining to grant relief not sought on its own terms.
Legal principles established
#- A litigant aware of pending proceedings must be vigilant and follow up the progress of the suit
- A court's discretion to set aside an ex parte judgment is meant to avoid injustice, not to assist a party who deliberately delays justice
Court orders
#- 1.The 1st Defendant/Applicant's Notice of Motion application dated 8th July, 2024 is dismissed
- 2.The 2nd Defendant/Applicant's Chamber Summons application dated 28th November, 2024 is dismissed
- 3.Costs of both applications awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1, 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 10 Rule 11 & Order 50 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya; Section 3 of the Environment and Land Court Act; Article 159(2); Order 9 Rule 9(a) & Order 10 Rule 11
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rop v Soo & another (Environment and Land Case 55 of 2018) [2025] KEELC 7666 (KLR)", Case Analysis (2025). Environment and Land Case 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7666/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.