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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 7838 (KLR)

Waqo v Tunasco Insaat Anonin Sirket Limited (Land Case E043 of 2024) [2025] KEELC 7838 (KLR)

Environment and Land Court
13 November 2025
2,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a default judgment entered without proper service and moved the entire case to the High Court, which has jurisdiction over commercial disputes.

What this practically means

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Executive summary

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This is a ruling on the defendant's notice of motion dated 13th April 2025 seeking to set aside an interlocutory judgment entered on 8th April 2025, to stay execution, to allow the firm of Musyoki Musango & Co. Advocates to come on record, and to have a draft defence deemed duly filed. The defendant, through its director Abdulwalli Sharifi, deposed that it was never served with the pleadings or mention notices and that the plaintiff's approach was trial by ambush. The plaintiff relied on an affidavit of service sworn by Abel Marube Ondieki on 9th February 2024 and alleged the defendant was merely delaying justice. No submissions were filed despite directions. The court first allowed the uncontested prayer permitting the new advocates on record. Examining Order 10 Rule 11 of the Civil Procedure Rules, it found no memorandum of appearance had been filed when judgment was entered, making the judgment irregular. Relying on James Kanyiita Nderitu v Ghikas, the court held that an irregular default judgment must be set aside ex debito justitiae, as of right, without regard to the merits of the defence or delay. Noting the application was prompt and a defence had been filed deserving of trial, the court set aside the interlocutory judgment and deemed the draft defence filed upon payment of fees. The court then considered its own jurisdiction, finding the dispute to be commercial in nature - a contractual performance guarantee over land in connection with a KERRA tender - with no dispute as to title. It transferred the file to the High Court in Nanyuki and ordered costs to be in the cause.

Key legal issues

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01

Whether the interlocutory judgment of 8th April 2025 was regular or irregular

Holding

The judgment was irregular because no memorandum of appearance was on record when it was entered, and service of the pleadings was contested; it was therefore liable to be set aside ex debito justitiae

Reasoning

The court examined the record and found no memorandum of appearance filed at the time judgment was entered. The affidavit of service was contested, with the applicant disputing the role of a secretary named Lillian, which the court could not confirm at that stage. Relying on James Kanyiita Nderitu, the court held irregular default judgments are set aside as of right, without inquiring into the merits of the defence or delay.

p. 2
02

Whether the application to set aside was made timeously and whether the defence deserves to be heard

Holding

The application was made without delay and the filed defence deserves to be tested at trial, supporting setting aside

Reasoning

The court noted the defendant filed a memorandum of appearance on 13th April 2025 and the application was brought promptly after the judgment of 8th April 2025. Mindful of the duty to ensure no party is removed from the seat of justice, the court found it in both parties' interest that the interlocutory judgment be set aside so the defence could be tested in court.

p. 4
03

Whether the Environment and Land Court has jurisdiction over the suit

Holding

The dispute is commercial (a contractual performance guarantee and charge), with no dispute as to title or ownership of the property, and should be heard by the High Court

Reasoning

Examining paragraphs 3, 4 and 5 of the plaint and the prayers sought, the court found the dispute concerned a security guarantee, an agreement for a performance guarantee over the plaintiff's property and a charge in favour of an interested party, in respect of a KERRA tender. As no dispute as to interest in or ownership of the land arose, the matter falls outside the Environment and Land Court's jurisdiction and belongs to the High Court.

p. 4

Legal principles established

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  • An irregular default judgment, entered against a defendant not served or properly served with summons to enter appearance, must be set aside ex debito justitiae as a matter of right and not as an exercise of discretion

Court orders

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  1. 1.The firm of Musyoki Musango & Co. Advocates is hereby allowed to come on record on behalf of the defendant/applicant
  2. 2.The interlocutory judgment entered on 8th April, 2025 is hereby set aside
  3. 3.The draft defence is deemed as duly filed upon payment of the requisite filing fees
  4. 4.This file is hereby transferred to the High Court in Nanyuki for further directions
  5. 5.Costs be in the cause
Jurisdiction invoked
Articles 25, 48, 50(1), 159(2)(d)(e) of the Constitution; Sections 1A, 1B, 3A of the Civil Procedure Act; Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Waqo v Tunasco Insaat Anonin Sirket Limited (Land Case E043 of 2024) [2025] KEELC 7838 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7838/eng@2025-11-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.