https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4578

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 103 OF 2017** **CYRUS MWAURA NJENGA - PLAINTIFF/RESPONDENT** **VS** **SALYVIAH THUO - DEFENDANT/APPLICANT** **RULING** **(In respect of the Defendant’s Application dated 27/11/2025)** 1. Before me for determination is the Defendant’s application dated 27/11/2025, expressed to be anchored in the provisions of Section 3A, 1A, & 1B of the Civil Procedure Act; Order 10 Rules 11 & Order 22 Rule 22 of the Civil Procedure Rules, seeking the following substantive orders; 2. That the ex parte proceedings and all consequential orders decree and judgment be set aside wholly and the Defendant be allowed to enter appearance and defend the case. 3. That the process server be summoned to verify the validity of service of summons. 4. That costs be in the cause. 5. The application is based on the premise that the Defendant is subject to execution warrants issued pursuant to the court decree and that the Auctioneers have issued a proclamation notice. It is further observed that the property targeted for attachment in the proclamation notice is held in trust for the benefit of a children's home, as evidenced by the accompanying photographs. The Community-Based Organisation (CBO) certificate is corroborated by supporters advocating for orphaned children. It is submitted that the Defendant has an arguable and triable defence to the claim, warranting a hearing. The Defendant asserts that the service of the summons to enter appearance was neither lawful nor conducted in accordance with the Civil Procedure Rules. This service purportedly contravenes the provisions of Order 5 of the Civil Procedure Rules and is characterised by irregularities. The Defendant reiterates the right to be heard under the principles of natural justice and the importance of access to justice, in the interests of justice. 6. The application is further supported by the Affidavit of Salyviah Thuo, the Defendant herein, sworn on 27/11/2025. She argues that the goods and property targeted for attachment belong to a children's home and are not hers personally. She contends that she has a valid defence, including that the dispute involves a boundary issue over two parcels of land, which she claims the court lacks jurisdiction to hear. The deponent asserts that she was not properly served with the summons, thereby violating legal procedures, and that she only became aware of the case when auctioneers arrived. She urges the court to allow her to exercise her right to be heard by setting aside the proceedings to prevent her from being prejudiced. **The Plaintiff’s Replying Affidavit** 1. The Plaintiff submitted a Replying Affidavit dated 24/2/2026, asserting that the instant suit was appropriately instituted on 10/2/2017, accompanied by an application dated 9/2/2017, both of which were duly served upon the Applicant. Following such service, the Applicant engaged Messrs. Moasa & Company Advocates, who entered an appearance on 21/2/2017 and subsequently filed a replying affidavit on 17/3/2017 in opposition to the Applicant's motion. The Plaintiff argues that the Defendant’s delayed objection to service is unfounded and unpersuasive, considering that the Defendant has been fully aware of the proceedings since March 2017. 2. The deponent further contends that the matter proceeded to an ex parte hearing and that judgment was delivered on 13/12/2019. That the Applicant, having been represented by counsel throughout, is estopped from raising procedural objections at this late stage, more than six years after judgment. Additionally, that upon the initiation of attachment proceedings, the Applicant approached the Respondent’s advocates and offered to settle the decretal amount of Kshs. 664,415/= and, in fact, paid a deposit of Kshs 100,000 on 8/12/2025 as evidence of good faith. He argues that the application is thus devoid of merit, constitutes an abuse of court process, and prays for its dismissal with costs. **The written submissions** 1. The Court directed that the application be canvassed by written submissions. Both parties complied. The Defendant/ Applicant’s submissions are dated 19/2/2026, whereas the Plaintiff/Respondent’s submissions are dated 16/3/2026. **The Defendant/Applicant’s submissions** 1. The Defendant contends that the ex parte proceedings and the resulting judgment were irregularly entered due to the affidavit of service's non-compliance with the mandatory requirements of Order 5 of the Civil Procedure Rules. Specifically, it failed to disclose the time of service, the mode of service, or the basis upon which the process server identified the Defendant. The Defendant further asserts that she was unaware of the proceedings until execution and eviction notices were served, and that no prejudice has been inflicted upon the Plaintiff, as no undue delay has been caused. 2. In support of the application to set aside, the Defendant invokes the principles of natural justice and access to justice, citing the Court of Appeal’s decision in Kenyatta National Hospital Board -vs- Ruteere [2025] KLR, which reiterates the obligation of a court to examine a draft defence to determine whether it raises triable issues before dismissing an application to set aside a default judgment. The Defendant urges the court to consider the annexed Draft Statement of Response, which is said to disclose triable issues, and accordingly prays that the ex parte judgment and decree be set aside unconditionally, and that she be granted leave to defend the suit on its merits. **The Plaintiff/Respondent’s submission** 1. In his submissions, the Respondent contends that the applicant’s motion to set aside the ex parte decree is an abuse of court process, as she failed to participate in the proceedings for over seven years despite being duly served. He asserts that the court properly proceeded ex parte after service of a notice of the hearing on the applicant’s advocates, who were absent without explanation. The Respondent argues that the applicant has neither demonstrated sufficient cause nor offered any credible justification for the inordinate delay. Accordingly, the application lacks merit and ought to be dismissed with costs. 2. The Respondent further submits that under Order 22 Rule 22(1) of the Civil Procedure Rules, the court may stay execution only upon sufficient cause being shown. The Respondent relies on the Tanzanian case of The Registered Trustees of the Archdiocese of Dar es Salaam –vs- the Chairman Bunju Village Government & Others, where the term “sufficient cause” was held to require a liberal construction in favour of substantial justice, but only where no negligence, inaction, or want of good faith is imputed to the applicant. The Respondent asserts that the Applicant’s conduct, including her prolonged inaction, falls squarely within negligence and bad faith, and thus she is not entitled to the court’s discretionary relief. 3. Additionally, the Respondent highlights the Applicant’s contradictory conduct, noting that she voluntarily deposited Kshs 100,000/= towards the decretal sum and proposed to settle the balance by 8/6/2026, which is inconsistent with her concurrent prayer to set aside the judgment. The Respondent argues that this payment undermines the Applicant’s claim of prejudice and demonstrates an acknowledgment of the decree. Consequently, the Respondent prays that the application be dismissed with costs and that the attachment and execution process be permitted to continue should the Applicant fail to honour her proposed payment schedule. **Analysis and Determination** 1. The Court has read and considered the Application, the Affidavit in support and in opposition, the annexures thereto as well as the rival submissions, I am of the view that the issues for determination are; 2. Whether the judgment delivered on 13/12/2019 should be set aside or reviewed; 3. Which orders should the Court issue. **Whether the judgment delivered on 13/12/2019 should be set aside or reviewed;** 1. Order 10 Rule 11 of the Civil Procedure Rules outlines the procedure for setting aside interlocutory judgments in default of appearance or defence as follows: “Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 1. Further the provision is buttressed by **Order 51 Rule 15 of the Civil** **Procedure Rules** which provides: - **"**The court may set aside an order made ex parte**"** 1. The power to set aside default judgment is however discretionary as was held in Berlin Equipment Ltd & Another –vs- Tata Africa Holdings (K) Limited [2026] KECA 100 (KLR), the Court of Appeal stated that: - “15.… It is common ground that the jurisdiction under Order 10 rule 11 isdiscretionary. The rule empowers the court to set aside or vary a default judgment “upon such terms as are just.” The principles guiding the exercise of that discretion are well settled. The discretion exists to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, and is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice, as articulated in the celebrated case, Shah v Mbogo (1967) EA 166.” 1. It should not be gainsaid that the grant of orders for setting aside a judgment provides an opportunity to an aggrieved party in two scenarios: one where the judgment is irregular, and two where the judgment is regular. For an irregular judgment sought to be set aside, it shall go that way as of right, because it means that the party was not given an opportunity to be heard, and the rules of natural justice cannot permit a party to be condemned unheard. A Court would proceed to set aside the judgment (if deserving) because the main interest of the Court is to protect the Defendant's right to be heard as envisaged under Article 50 of the Constitution. 2. In cases of irregular judgment, the Court will set it aside ex debito justiciae - as of right. As the Court of Appeal observed in James Kanyiita Nderitu & Another [2016] eKLR, there is little option for a court but to set aside such a judgment. The Court stated: “From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one which is irregularly entered. In a regular default judgement, the Defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a Defendant is entitled, under order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgement and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the Defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment, among others. See Mbogo & Another -vs- Shah (1968) EA 98, Patel -vs- E.A. Cargo Handling services Ltd (1975) E.A. 75, Chemwolo & Another -vs- Kubende (1986) KLR 492 and CMC Holdings -vs- Nzioka [2004] I KLR 173. In an irregular default judgment, on the other hand; judgment will have been entered against a Defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.” 1. The legal threshold for setting aside exparte judgment was laid out in the case of **Patel Cargo –Vs-E. A Handling Services Ltd** [1974] EA75 **and Shah –Vs- Mbogo (1967) EA 116** as follows; “Whether there is a meritable defence; the prejudice that will be occasioned to the parties; and explanation for the delay in bringing that application to set aside judgement. Where the summons were served and the Defendant failed to file defence and or enter appearance within the timelines the Plaintiff obtains a regular judgment. This judgment may be set aside on reasonable terms and conditions which the Court would deem fit in the circumstance.” 1. In the case of **Tree Shade Motors Ltd -vs- DT Dobie &Anor [1995-1998] 1EA 324** it was held that even if service of summons is valid, the judgement will be set aside if defence raises a triable issue. Where a draft defence was tendered together with an application to set aside a default judgement, the Court hearing the application was obliged to consider if it raised a reasonable defence to the Plaintiff’s claim. Where the Defendant showed a reasonable defence on the merits, the Court could set the ex-parte judgement aside. 2. In the present case, the Defendant/Applicant contends that she was never served with a summons to enter an appearance and was entirely unaware of its existence and of the Judgment thereon. She only became aware when the Plaintiff served her with a summons, thereby violating legal procedures, and only learned of the case when auctioneers arrived. 3. The Plaintiff, on the other hand, contends that the Applicant was well aware of the existence of the suit. That, when instituting this on 10/2/2017, he accompanied it with an application dated 9/2/2017, both of which were served upon the Applicant. That, upon such service, the Applicant instructed Messrs. Moasa & Company Advocates, who entered appearance on 21/2/2017 and subsequently filed a replying affidavit on 17/3/2017 in opposition to his motion. 4. I have perused the record. It is evident that the Applicant was, in fact, served. It filed a Notice of Appointment dated 21/2/2017 through the law firm of M/S Maosa & Company Advocates. The record further shows that the Applicant was served with hearing notices for the main suit as well as the Notice to Show Cause, but there was no appearance on her behalf. The Affidavits of Service filed thereon confirm service. 5. It therefore follows that the Court entered a regular judgment in this case, which can only be set aside upon satisfaction that there is a meritable defence; that the prejudice that will be occasioned to the parties; and that there is an explanation for the delay in bringing that application to set aside the judgement. 6. The Applicant has attached a Draft Defence. A perusal of the same shows that it raises triable issues. The Defendant/Applicant avers that the dispute between the parties herein relates to a boundary contention; hence, the court lacks jurisdiction. Jurisdiction is everything, and without it a court should lay down its tools. 7. As noted earlier, setting aside a default judgment is discretionary. That discretion, however, should be exercised judicially. Delay defeats equity, and he who comes to equity must come with clean hands. The application herein was filed about 6 years after the judgment was entered. What is before this court is a regular judgment. The applicant was duly served with summons to enter an appearance but, for unexplained reasons, failed to file a defence, despite opposing an interim application. I have found no inconsistencies in the process server’s affidavits of service. The Defendant/Applicant, despite being aware of the proceedings, opted not to respond. 8. Further, the Applicant has partially complied with the Court's Decree issued herein by paying Kshs. 100,000/=, as evidenced by the Receipt dated 8/12/2025. She cannot now turn around and allege that she was unaware of the proceedings. 9. As for the issue that the Plaintiff has proclaimed a property not belonging to her, the law provides for appropriate procedures in such cases, namely objection proceedings. That cannot be the basis for setting aside the Judgment. 10. Final orders for disposal 11. The upshot is that I find the application dated 27/11/2025 lacking merit. 12. It is therefore dismissed with costs. 13. It is ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JULY 2026 VIA MICROSOFT TEAMS** **J G KEMEI** **JUDGE** **Delivered Virtually in the Presence of**: 1. Ms. Wamboi for the Plaintiff 2. N/A for Defendant 3. CA – Ms Kendi