Kenya Alliance Insurance Company Limited v Samson & 2 others; Family Bank Limited (Interested Party) (Environment and Land Case E143 of 2023) [2025] KEELC 8107 (KLR)
The bottom line
#A Kenyan court refused to undo a default land judgment because the defendant was properly served through his advocate and his proposed defence raised no real triable issues.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment of 9th November 2023 was regular or irregular
The judgment was regular because service was duly effected on the 1st Defendant through his advocate, Ogola Okello & Company Advocates, whose appearance on 3rd May 2023 was not controverted
The court found that the Plaintiff's advocate served the Defendant at Kiambu Remand Prison, that the Defendant directed service upon his advocate, and that the firm's stamp on served documents was undisputed. Counsel actively participated in pre-trial directions, consented to status quo orders, and knew the hearing date but neither filed a defence nor attended trial. In the absence of rebuttal or cross-examination of the process server, the presumption of regularity of the affidavits of service stood, making the default judgment regular and setting it aside a matter of discretion only.
Whether the draft defence raises triable issues warranting exercise of discretion to set aside
The draft defence raised no triable issue; the claimed 1991 'purchase in kind' contravenes section 3(3) of the Law of Contract Act, and the defence was silent on the agreement, the 1996 delay and the failure to sue after alleged 2018 eviction
The court examined the proposed defence on merits, not for probability of success but for triability. The Defendant's claim of acquiring land in kind in 1991 with title in 1996 contradicted section 3(3) of the Law of Contract Act requiring written, witnessed agreements for land. The defence disclosed no agreement, no explanation for the 1996 transfer delay, and no suit filed after alleged 2018 eviction. These deficiencies meant no matter warranting further interrogation at trial was raised, so the discretion to set aside was not exercised.
Legal principles established
#- A default judgment entered against a defendant who was duly served is regular and may only be set aside in the court's discretion on just terms, whereas an irregular judgment entered without service must be set aside as of right (ex debito justitiae)
- An affidavit of service enjoys a presumption of regularity unless the process server is cross-examined or the affidavit is rebutted by credible evidence
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 26th June 2025 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Articles 50 and 159(2)(d) & (e) of the Constitution; Sections 1A, 1B, 3A and 95 of the Civil Procedure Act; Order 10 Rule 11, Order 22 Rule 22(1), Order 45 Rule 1, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Alliance Insurance Company Limited v Samson & 2 others; Family Bank Limited (Interested Party) (Environment and Land Case E143 of 2023) [2025] KEELC 8107 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8107/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.