[2025] KEELC 4018 (KLR)

[2025] KEELC 4018 (KLR)

The court found that the default judgment entered on 17th June, 2021 was regular, as the 1st and 2nd defendants/applicants were properly served using the address appearing on the title and official search, and no sufficient evidence was provided to prove otherwise. However, the court exercised its discretion to set aside the judgment, noting that the applicants' draft defence and counterclaim raised triable issues that should be determined on merit. The court emphasized the need to do substantive justice by allowing all parties an opportunity to be heard, provided that the 2nd defendant/applicant pays the plaintiff/respondent the costs of the application before the matter proceeds to...

Citation
[2025] KEELC 4018 (KLR)
Parties
Plaintiff: Tom Onyango Oketch; Defendant: Hassan Ali Hussein; Defendant: Amina Hassan; Defendant: John Gatobu Kirimania; Defendant: City Council of Nairobi
Court
Environment and Land Court
Court Station
Environment and Land Court at Nairobi
Jurisdiction
Kenya
Judgment Date
27 May 2025
Case Number
Environment & Land Case 2141 of 2007
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Default Judgment and Related Orders
Outcome
Application allowed; default judgment set aside; defence and counterclaim deemed filed upon payment of costs.
Judges
CG Mbogo
Legal Topics
Setting Aside Default Judgment, Service of Process, Title to Land, Substituted Service, Amendment of Pleadings
Source Language
English
Civil Procedure Land and Property Setting Aside Default Judgment Service of Process Title to Land Substituted Service Amendment of Pleadings

Case Brief

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Parties

Tom Onyango Oketch

Plaintiff

Hassan Ali Hussein

Defendant

Amina Hassan

Defendant

John Gatobu Kirimania

Defendant

City Council of Nairobi

Defendant

Procedural Posture

Notice of Motion / Ruling on Application to Set Aside Default Judgment and Related Orders

Legal Issues

  1. 1 Whether the default judgment delivered on 17th June, 2021 was regular or irregular and should be set aside.
  2. 2 Whether the 1st and 2nd defendants/applicants were properly served with summons and pleadings.
  3. 3 Whether the applicants have raised triable issues warranting the matter to be heard on merit.

Ratio Decidendi

The court found that the default judgment entered on 17th June, 2021 was regular, as the 1st and 2nd defendants/applicants were properly served using the address appearing on the title and official search, and no sufficient evidence was provided to prove otherwise. However, the court exercised its discretion to set aside the judgment, noting that the applicants' draft defence and counterclaim raised triable issues that should be determined on merit. The court emphasized the need to do substantive justice by allowing all parties an opportunity to be heard, provided that the 2nd defendant/applicant pays the plaintiff/respondent the costs of the application before the matter proceeds to...

Court Disposition

Application allowed; default judgment set aside; defence and counterclaim deemed filed upon payment of costs.

Orders

  • The judgment delivered on 17th June, 2021 is set aside.
  • The draft statement of defence and counterclaim dated 28th October, 2024 is deemed as duly filed subject to payment of requisite filing fees.