Charara v Kirui alias Joshua Kipngetich Kirui (Enviromental and Land Originating Summons 72 of 2018) [2026] KEELC 1542 (KLR)
The bottom line
#A Kenyan land court refused to undo a six-year-old default judgment, confirming that claiming you were never served is not enough without evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the judgment delivered on 27th September, 2019 should be set aside
- 2.Who should bear costs of the application
Key legal issues
#Whether the ex parte judgment was regular or irregular
The judgment was regular because affidavits of service on record showed the Defendant was served with the Originating Summons, supporting affidavit, annextures and a hearing notice; mere denial of service without cross-examination of the process server does not displace the presumption of service.
The court distinguished regular from irregular default judgments following James Kanyiita Nderitu. It examined the affidavits of service sworn by Joseph Cheruiyot Chepkwony, which recorded service of the pleadings on 20th September 2018 and a hearing notice on 9th April 2019. Applying Order 5 Rules 15 and 16 and the Shadrack arap Baiywo presumption, it held that a party disputing service must put the process server in the witness box; bare denial is insufficient.
Whether the court should exercise its discretion to set aside the regular judgment
The discretion was declined: the application was filed six years post-judgment, after a two years and eight month unexplained delay following the striking out of the earlier setting-aside application, and the decree had already been executed, so setting aside would prejudice the Plaintiff/Respondent.
The court listed the James Kanyiita Nderitu factors (reason for default, delay, triable issues, prejudice, interests of justice). It found the explanation of intended home settlement unsubstantiated, noted the application was triggered only by execution, and held that whether the defence raised triable issues was 'neither here nor there' given the delay. Execution being complete, setting aside would be prejudicial.
Costs of the application
Costs follow the event under Section 27 of the Civil Procedure Act; the unsuccessful Applicant was ordered to pay costs.
The court stated the general rule that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise, and no such reason was advanced here.
Legal principles established
#- An affidavit of service creates a presumption of service; a party contesting service must place evidence of fraud or improper service before the court through the procedure in Order 5 Rule 16, including cross-examination of the process server
- A regular default judgment may only be set aside in the exercise of the court's unfettered but judicial discretion, having regard to reasons for default, delay, triable issues, prejudice and the interests of justice
- A judgment creditor has a period of 12 years to execute a judgment; a judgment debtor cannot complain of delay in commencement of execution
Court orders
#- 1.The Defendant/Applicant's Notice of Motion application dated 20th March, 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 13 & 19 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A & 63E of the Civil Procedure Act; Order 22 Rule 18 & 22, Order 40 and Order 50 of the Civil Procedure Rules
Relief refused
#Setting aside the ex-parte proceedings and judgment delivered on 27th September, 2019 and leave to defend the suit
The judgment was regular (the Applicant was served with the pleadings and hearing notices as evidenced by affidavits of service), and the Applicant failed to sufficiently explain a delay of two years and eight months since his earlier application was struck out, with the decree having already been executed
Costs of the application to be provided for (by the Respondent)
Costs follow the event under Section 27 of the Civil Procedure Act; the Applicant was unsuccessful
Costs
The application dated 20th March, 2025 was dismissed with costs to the Plaintiff/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Taking the foregoing into consideration, I find that the Defendant/Applicant’s application dated 20th March, 2025 lacks merit and it is hereby dismissed with costs.
It follows, therefore, that it is not enough for a party to simply deny service. Such party must put the process server in the witness box, cross examine him/her and the Court must, after this crossexamination, make a finding as to whether the service was proper or not.
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right.
It is evident that it is the commencement of the execution process that woke the Defendant/Applicant from his slumber and he thereafter rushed to file the application under consideration.
A Court’s discretion to set aside an exparte judgment or order for that matter is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.
Issues in the judgment
#The Applicant's pleadings and the court record contain inconsistent dates: the Applicant refers to judgment delivered on 16th October, 2019 while the record shows judgment was delivered on 27th September, 2019 (the court itself noted the discrepancy), and the decree is variously described as issued on 16th October, 2019 and served on 17th September, 2019 / 17th December, 2019
The judgment recites a ruling date of 2nd June, 2022 but also refers to the decree and orders of 14th June, 2022, and the delivery date (12th March, 2026) post-dates the ruling date stated for reservations on 4th December, 2025 by an unusual gap
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charara v Kirui alias Joshua Kipngetich Kirui (Enviromental and Land Originating Summons 72 of 2018) [2026] KEELC 1542 (KLR)", Case Analysis (2026). Originating Summons dated 18th September, 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1542/eng@2026-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.