Cheptoo v Korir
The bottom line
#A Kenyan court cancelled a land judgment won without proper service, giving the defendant 21 days to finally file his defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could grant setting aside absent an express prayer
Yes - the omission was an inadvertent counsel error; prayers 2 and 4 presupposed setting aside, and Article 159 and the overriding objective favour substantive justice
The Notice of Motion lacked an express prayer to set aside the ex parte judgment, which the respondent argued rendered it incompetent. The court held the omission was counsel's inadvertent mistake not to be visited on the litigant, since prayers 2 and 4 presupposed setting aside, guided by Article 159 and sections 1A and 1B of the Civil Procedure Act.
Whether service was properly effected
No proper service was effected; the process server's affidavits were internally inconsistent and showed documents were slid under a closed door and left with third parties
The process server's affidavit of 3rd June 2024 admitted documents were destroyed and he was unable to serve the defendant. The later affidavit described sliding a copy under a closed door and handing copies to the area chairman and Assistant Chief. The court found the server could not state without contradiction that the defendant received the documents, so no proper service was effected.
Whether the ex parte judgment was regular or irregular
The judgment was irregular for want of proper service and was set aside with all consequential orders
Applying S.S. Mehta & Sons Ltd v Gachira, which distinguishes regular from irregular ex parte judgments, the court held that a judgment obtained without proper service is irregular. Having found no proper service, the ex parte judgment of 29th January 2026 was irregular and was set aside together with the decree and consequential orders.
Legal principles established
#- A distinction is drawn between regular and irregular ex parte judgments; a judgment obtained without proper service of summons is irregular and liable to be set aside
- Sliding documents under a closed door or leaving them with third parties does not amount to proper service
Court orders
#- 1.The exparte judgment entered on 29th January 2026 and all consequential orders and decree are set aside
- 2.Leave granted to the Defendant/Applicant to enter appearance and file defence out of time within twenty-one (21) days from the date of the ruling
- 3.Costs of the application to be borne by the Defendant/Applicant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under the Civil Procedure Rules (Order 5, Order 10 Rule 11, Order 19 Rule 2, Order 22 Rule 22) and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheptoo v Korir", Case Analysis (2026). Environment and Land Case E040 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5625/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.