Nchore v Aure (Environment and Land Case 28 [E025] of 2021) [2026] KEELC 3506 (KLR)
The bottom line
#The court refused to overturn a 2021 default judgment because the landowner waited over four years without explaining her delay or proving her land claim with documents.
What this practically means
#Executive summary
#Key legal issues
#Properness of service of summons
The court found the applicant was properly served with summons and subsequent court processes, and her failure to cross-examine the process server left doubts about her assertion of ignorance of the suit
The applicant contested service but did not seek cross-examination of the process server when given the opportunity, despite an affidavit of service showing acknowledged service and multiple subsequent services by the same server. The unnamed third parties said to have informed her of the suit were not disclosed. The court concluded the applicant was aware of the proceedings at least by February 2023.
Inordinate and unexplained delay
The delay of 4 years, 7 months and 10 days, including three years after becoming aware of the execution process, was unexplained and disentitled the applicant to the discretionary relief
Once delay is raised, the applicant must explain it generally and specifically the last three years since becoming aware of execution. The claim of being in civil jail was unsupported by a certificate of imprisonment. The notice to show cause and appearances in 2023 showed she was aware of proceedings yet waited until 2026 to act, making the application an afterthought.
Existence of a triable defence on the merits
The draft defence and counterclaim pleaded long residence and allocation to the father-in-law, but was unsupported by any documents evidencing the allocation, so it failed to demonstrate a defence that would impeach the respondent's title
While a defence need not succeed, it must raise triable issues. The applicant's claim of allocation by the Settlement Fund Trustees was contradicted by her own draft defence admitting repossession and re-allocation for default. Without offer letters, payment records, charge documents or discharge, she could not show superior rights over the respondent's title.
Nature of the default judgment - regular vs irregular
The judgment was a regular one, entered after due service, and the stringent principles governing setting aside regular judgments applied
Applying James Kanyiita Nderitu, the court distinguished regular from irregular default judgments. Here service was effected and the applicant simply failed to enter appearance or defend, or to move under Order 10 Rule 11 in 2023. No inconsistencies in the process server's affidavits were found that would render the judgment irregular.
Legal principles established
#- Courts have unlimited discretion to set aside a default judgment upon such terms as are just, in light of all facts and circumstances and the respective merits of the parties
- A regular judgment will not usually be set aside unless the applicant demonstrates a triable issue
- Once a party is given a reasonable opportunity to be heard and does not utilise it, the only point on which it can be heard is why it did not utilise the opportunity
- Where service of court process is contested, the proper course is to seek cross-examination of the process server; failure to do so undermines the contention that the party was unaware of the suit
Court orders
#- 1.The application dated 10/3/2026 is dismissed
- 2.The plaintiff/respondent is awarded costs of the application
- Jurisdiction invoked
- Inherent discretion to set aside default judgment under Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nchore v Aure (Environment and Land Case 28 [E025] of 2021) [2026] KEELC 3506 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3506/eng@2026-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.