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ELCPartially AllowedNot stated in the extract (ELC application at Kajiado)· [2026] KEELC 590 (KLR)

Kagogo & 3 others (Suing as the joint personal representatives of the Estate of Kabogo Tharau - Deceased) v Mayenga & 3 others (Environment and Land Case 16 of 2020) [2026] KEELC 590 (KLR)

Environment and Land Court
29 January 2026
1,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court set aside a default judgment against Embakasi Ranching Company because a communication breakdown with its lawyers, not deliberate delay, kept it out of the case.

What this practically means

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Executive summary

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The 3rd Defendant applied to set aside a default judgment delivered on 30th January 2025 and for leave for the firm of Gachara Adhiambo & Co. Advocates to come on record and file a statement of defence. The Plaintiffs opposed, arguing the 3rd Defendant had entered appearance and filed a defence but failed to prosecute the matter, and that hearing notices were served on its former advocates who did not attend. The court framed twin issues: whether the new firm could come on record after judgment, governed by Order 9 Rule 9; and whether the judgment should be set aside under Order 10 Rule 11. On the first issue, leave was granted because the outgoing firm of Chege Kibathi & Co. Advocates raised no objection. On the second, the court held the judgment was regular since the Applicant was served and entered appearance, requiring a discretionary analysis. Relying on James Kanyita Nderitu v Ghika and Shah v Mbogo, the court found the failure to participate was attributable to inadvertence caused by a breakdown in communication with counsel who had filed an unprosecuted application to cease acting in August 2021, rather than wilful default. Critically, the suit concerns ownership of land and allocation of plots within Embakasi Ranching Company Limited, whose records the 3rd Defendant holds as custodian; its participation would further the ends of justice. The court set aside the judgment, allowed the defence to be filed within 30 days, with responses within 30 days of service, and ordered the 3rd Defendant to bear the application costs plus Kshs 100,000 thrown away costs to the Plaintiff.

Key legal issues

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01

Change of advocate after judgment

Holding

Leave granted; Order 9 Rule 9 requires an order of the court or consent, and no objection was raised by the outgoing advocate

Reasoning

Order 9 Rule 9 governs change of advocate after judgment and requires either an application with notice to all parties or consent. The requirement protects the outgoing advocate's ability to raise outstanding issues. In this case, the previous firm of Chege Kibathi & Co Advocates raised no objection, so leave to bring the new firm on record was granted.

p. 3
02

Whether the default judgment was regular or irregular

Holding

The judgment was regular - the Applicant was duly served and entered appearance - so the court's task was to consider whether a sufficient basis for discretionary relief was established

Reasoning

Since service was not contested and the Applicant had entered appearance but failed to file a defence, the judgment was regular rather than irregular. For a regular default judgment the court exercises discretion under Order 10 Rule 11, weighing the reason for default, time elapsed, existence of triable issues, and prejudice to the parties, per James Kanyita Nderitu v Ghika.

p. 3
03

Whether there was a sufficient basis to set aside the judgment

Holding

Yes - the failure to participate was attributable to inadvertence arising from a breakdown in communication with counsel, and the 3rd Defendant is custodian of crucial records in a land dispute

Reasoning

The previous counsel had filed an application to cease acting in August 2021 which was never prosecuted, creating a probable breakdown in communication such that the 3rd Defendant lacked information about the case. The default was inadvertent, not wilful. Because the suit concerns ownership of land and plot allocation within Embakasi Ranching Company Limited, and the 3rd Defendant is the custodian of crucial records, its participation furthers the ends of justice.

p. 3

Legal principles established

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  • A regular default judgment may be set aside under Order 10 Rule 11 where the defendant shows a sufficient basis for the exercise of the court's discretion, considering reason for default, time elapsed, triable issues and prejudice.
  • The discretion to set aside ex parte judgments exists to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party deliberately obstructing or delaying justice.
  • A party also bears responsibility to follow up with its counsel on the position of its case.

Court orders

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  1. 1.Leave granted to the firm of M/s Gachara Adhiambo & Co. Advocates to come on record for the 3rd Defendant
  2. 2.The Judgment delivered on 30th January 2025 is set aside to facilitate participation of the 3rd Defendant
  3. 3.The 3rd Defendant shall file and serve its documents and witness statements within 30 days of uploading the Ruling on the CTS
  4. 4.The other parties shall be at liberty to respond within 30 days of service
  5. 5.The costs of the application shall be borne by the 3rd Defendant
  6. 6.The Plaintiff shall be paid thrown away costs of Kshs 100,000 before the hearing date

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 (generally)

Cases cited (7)

  • James Kanyita Nderutu/Nderitu Vs Maries/Marios Philotas Ghika & Another
    (2016) eKLR
  • Job Kilach Vs Nation Media Group & 2 Others
    Civil Appeal No. 94 of 2006
  • Shah versus Mbogo
    [1967] EA 116
  • Mbogo & Another V Shah
  • Patel V EA Cargo Handling Services Ltd
    [1975] EA 75
  • Chemwolo & Another V Kubende
    [1986] KLR 492
  • CMC Holdings Vs Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (and Order 9 Rule 9 for change of advocate after judgment)

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, "Kagogo & 3 others (Suing as the joint personal representatives of the Estate of Kabogo Tharau - Deceased) v Mayenga & 3 others (Environment and Land Case 16 of 2020) [2026] KEELC 590 (KLR)", Case Analysis (2026). Not stated in the extract (ELC application at Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/590/eng@2026-01-29

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