Sumbi & another v Keronya (Environment and Land Case Civil Suit 306 of 2017) [2025] KEELC 7773 (KLR)
The bottom line
#A Kenyan court refused to set aside a default judgment because substituted service by newspaper was valid and the defendant had no defence or excuse for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment of 18/10/2023 was irregular or regular
It was a regular default judgment because substituted service was ordered and effected, evidenced by a return of service of 18/06/2018 which the defendant did not contradict
The court traced the record: the suit was filed in 2017; the plaintiff's counsel informed the court the defendant was evasive; substituted service by advertisement in the Standard Newspaper was permitted on 24/4/2018 and effected on 27/04/2018 and 3/05/2018; the defendant failed to enter appearance within 21 days and the suit proceeded to formal proof. The return of service evidenced due service and was uncontradicted.
Whether the regular default judgment should be set aside
No; the discretion was exercised against the defendant for lack of justification, absence of a draft defence, unexplained delay, notice of execution served on him in January 2025, and prejudice to the plaintiffs in a very old matter
Applying the James Kanyiita Nderitu factors, the defendant gave no reason for his failure to defend, tendered no draft defence revealing triable issues, did not deny service of the notice of entry of judgment and execution via his telephone on 22/01/2025, and did not explain his inaction thereafter. The judgment had stood about one and a half years and the matter was roughly eight years old, so setting it aside would significantly prejudice the plaintiffs.
Legal principles established
#- A default judgment entered against a defendant who has not been served or properly served with summons is irregular and void ab initio and may be set aside suo sponte without regard to triable issues or delay
- Where a judgment is a regular default judgment, the court exercises an unfettered discretion considering the reason for failure to defend, time elapsed, triable issues, prejudice and the interests of justice
Court orders
#- 1.The notice of motion dated 7/03/2025 is dismissed
- 2.Costs of the motion awarded to the plaintiffs, assessed at Kshs. 15,000/=
- Jurisdiction invoked
- Articles 50 & 159(2)(d) & (e) of the Constitution of Kenya, Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Orders 10 Rule 11, 22 Rule 22(1), 45 Rule 1 and 50 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sumbi & another v Keronya (Environment and Land Case Civil Suit 306 of 2017) [2025] KEELC 7773 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7773/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.