Njenga v Thuo (Environment and Land Case 103 of 2017) [2026] KEELC 4578 (KLR)
The bottom line
#A Nairobi court refused to undo a 2019 default judgment because the defendant was properly served and waited six years to act.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 13/12/2019 was regular or irregular and whether it should be set aside
The judgment was regular; the Defendant was duly served, entered appearance through Messrs. Moasa & Company Advocates, and was served with hearing notices and Notice to Show Cause, so the application fails
The court perused the record and found a Notice of Appointment filed on 21/2/2017 through M/S Maosa & Company Advocates, affidavits of service confirming service of hearing notices, and no inconsistencies in the process server's affidavits. A regular judgment can only be set aside in the court's discretion upon proof of a meritable defence, absence of prejudice, and explanation for the six-year delay. The Defendant offered none, and her partial payment of Kshs. 100,000/= toward the decree contradicted her claim of ignorance of the proceedings.
Whether the claim that proclaimed property belongs to a children's home justified setting aside the judgment
No; the proper avenue is objection proceedings under execution law
The Defendant argued that the goods targeted for attachment belonged to a children's home held under a CBO certificate, not to her personally. The court held that the law provides appropriate procedures for third-party claims to attached property through objection proceedings, and such a complaint cannot be a basis for setting aside a validly obtained judgment.
Legal principles established
#- An irregular default judgment (entered against a defendant not served or not properly served) is set aside ex debito justitiae as of right, without regard to triable issues or delay, because the defendant was condemned unheard
- A regular default judgment may be set aside only in the court's discretion upon consideration of a meritable defence, prejudice to the parties, and explanation for delay
- A court hearing an application to set aside a default judgment is obliged to consider whether the draft defence raises a triable issue
Court orders
#- 1.The application dated 27/11/2025 is found to lack merit
- 2.The application is dismissed with costs
- Jurisdiction invoked
- Sections 3A, 1A & 1B of the Civil Procedure Act; Order 10 Rule 11 and Order 22 Rule 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga v Thuo (Environment and Land Case 103 of 2017) [2026] KEELC 4578 (KLR)", Case Analysis (2026). ELC.103.2017-NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4578/eng@2026-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.