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ELCDismissedELC.103.2017-NBI· [2026] KEELC 4578 (KLR)

Njenga v Thuo (Environment and Land Case 103 of 2017) [2026] KEELC 4578 (KLR)

Environment and Land Court
13 July 2026
2,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (J G Kemei, J) determines the Defendant's application dated 27/11/2025 seeking, under Sections 3A, 1A and 1B of the Civil Procedure Act and Orders 10 Rule 11 and 22 Rule 22 of the Civil Procedure Rules, to set aside the ex parte judgment and decree delivered on 13/12/2019, to be allowed to defend the suit, and to have the process server summoned. The Defendant asserted she was never properly served, only learning of the case when auctioneers arrived to execute against property she claimed was held in trust for a children's home, and that her draft defence raised triable issues including want of jurisdiction over a boundary dispute. The Plaintiff countered that the Defendant was served in 2017, entered appearance through Messrs. Moasa & Company Advocates, filed a replying affidavit, was served with hearing notices, and later deposited Kshs. 100,000/= toward the decretal sum of Kshs. 664,415/=. The court framed two issues: whether the 2019 judgment should be set aside or reviewed, and what orders should issue. Applying the settled distinction between regular and irregular default judgments, the court found the judgment regular: the record showed service, appearance and affidavits of service with no inconsistencies. A regular judgment could only be set aside on proof of a meritable defence, absence of prejudice and explanation for the six-year delay, none of which was demonstrated. Complaints about proclamation of property not belonging to the Defendant were held to belong in objection proceedings. The application was dismissed with costs.

Key legal issues

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01

Whether the judgment of 13/12/2019 was regular or irregular and whether it should be set aside

Holding

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

Reasoning

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.

p. 8
02

Whether the claim that proclaimed property belongs to a children's home justified setting aside the judgment

Holding

No; the proper avenue is objection proceedings under execution law

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The application dated 27/11/2025 is found to lack merit
  2. 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

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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, "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.