Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachel Nyambura Kamau) v Gatheca & another (Environment and Land Case 136 of 2020) [2026] KEELC 3572 (KLR)

The court distinguished irregular from regular default judgments following Patel v EA Cargo Handling and James Kanyita Nderitu. An irregular judgment is set aside ex debito justiciae; a regular one is discretionary and requires a triable defence, explanation for delay, and balance of prejudice. The 2nd Defendant was represented on 8/6/2021, 9/6/2021 and 22/11/2021, the hearing notice was served on its new advocates, and no illness was ever notified. The chairman's alleged illness does not excuse a company whose records are not held by an individual. Three years' delay and the death of a 1st Defendant witness weigh against setting aside.

Review lies only for discovery of new and important matter not available despite due diligence, an error apparent on the face of the record, or other sufficient reason. Relying on Stephen Wanyoike Kinuthia, the court held that discovery of new evidence must be strictly proved. The 2nd Defendant's own register of members would have been available to the Plaintiffs before and during the hearing; the evidence was not 'new'. The Plaintiffs bore the evidentiary burden of proving their case and failed to exercise due diligence.

Under Section 51(2) of the Advocates Act, a certificate of taxation is final as to amount and the court may order judgment to be entered for the certified sum. Following Lubulellah and Rubo Kimngeich Arap Cheruiyot, the court held that a certificate of costs is not an executable instrument; warrants of attachment cannot issue on it. The 1st Defendant must first apply for judgment adopting the certificates and obtain a decree. Execution initiated on the certificates alone was premature, irregular and unprocedural.