African Inland Church Kenya Trustees Registered v Nzomo (Environment & Land Case 33 of 2018) [2025] KEMC 60 (KLR)
The bottom line
#A Kenyan court refused to revive a defendant's land case, ruling that nearly a year of unexplained delay forfeits any right to a second chance.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment should be set aside and the defendant allowed to defend the suit
The application was dismissed; the delay was inordinate and unexplained, the defendant was not candid, and was guilty of laches.
The court found the power to set aside a default judgment is discretionary, guided by Patel v EA Cargo Handling Services and Shah v Mbogo. The defendant had been advised on 18/9/2023 to file an application to re-open his case but took almost one year, and seven months to seek setting aside. He was present when the judgment date was set yet claimed he was never served with judgment notices, which the record contradicted. Acting in person and the emotive nature of a land dispute did not justify the delay.
Whether the defendant should be granted leave to file witness statements (extension of time)
Refused; the defendant did not meet the threshold in the Salat principles for extension of time.
The court applied the Supreme Court's principles in Salat v IEBC that extension of time is an equitable remedy available only to a deserving party who lays a basis. The defendant had been granted leave on 16/11/2021 and a further 14 days on 23/1/2023 but failed to comply each time, gave no explanation, and did not annex draft witness statements. His previous conduct and explained delay disentitled him.
Whether the plaintifi's witnesses should be recalled for further cross-examination
Refused; no reason was given and the prayer necessarily failed with the refusal to re-open.
Section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules confer discretion to recall witnesses, but per Fernandes v Noronha the discretion is exercised in exceptional cases where injustice would otherwise occur. No reason at all was advanced. Since judgment had been delivered, recalling witnesses required the case to be re-opened, which the court had declined.
Legal principles established
#- A party in default cannot claim the court's indulgence as of right; it must be earned through a full, honest and acceptable explanation of the default.
- Inordinate and unexplained delay defeats an application to set aside an ex parte judgment or re-open a case.
- The overriding objective provisions cannot be invoked as a matter of course to excuse a party's failings.
Court orders
#- 1.The application dated 4/9/2024 is dismissed
- 2.Costs of the application to the plaintifi
- Jurisdiction invoked
- Order 12 rule 7 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Inland Church Kenya Trustees Registered v Nzomo (Environment & Land Case 33 of 2018) [2025] KEMC 60 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/60/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.