Kanyua v Kariuki & another (Environment & Land Case E023 of 2023) [2025] KEELC 3465 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment won through a newspaper advert, ruling the landowners deserved their day in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court is functus officio and barred from dealing with the instant application
- 2.Whether the default judgment entered on 30th May 2024 should be set aside
Key legal issues
#Whether the court is functus officio
The court is not functus officio; setting aside a default judgment is not varying the judgment's terms
The court adopted the Pretorius exposition of the functus officio doctrine approved by the Supreme Court in Raila Odinga. It distinguished between varying a judgment's terms and setting it aside entirely. Because the defendants sought only to set aside the default judgment and be heard, the doctrine did not bar the application.
Whether the default judgment should be set aside
Yes; the judgment was set aside as the defendants were registered proprietors, never saw the substituted service advertisement, and acted promptly on learning of the judgment
Relying on Order 10 Rule 11 and the regular/irregular default judgment distinction in James Kanyiita Nderitu, the court found the applicants' failure to see the newspaper advertisement a plausible explanation, the application filed within six months without inordinate delay, no prejudice demonstrated by the applicant, and the right to a fair hearing under Articles 25 and 50 compelling in favour of allowing the registered proprietors to defend their land.
Legal principles established
#- A court is not functus officio in dealing with an application to set aside a default judgment
- An irregularly entered default judgment (against a defendant not served or properly served) may be set aside as of right
Court orders
#- 1.The default judgment delivered on 30th May 2024 is set aside, including the resultant decree dated 5th June 2024, all other consequential orders and the letter dated 4th July 2024
- 2.The Respondents/Applicants to file and serve their response to the Originating Summons within fourteen (14) days from the date of the ruling
- 3.The Notice of Motion application dated 18th November 2024 is allowed
- 4.The Notice of Preliminary Objection dated 17th February 2025 is disallowed
- 5.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; application under Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules
Relief refused
#Notice of Preliminary Objection dated 17th February 2025 (functus officio and laches)
The court found the applicants were seeking to set aside, not vary, the default judgment, and that the application was filed without inordinate delay
Costs
Each party to bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the interest of justice, while associating myself with the decisions cited, I will proceed to set aside the default judgement dated the 30th May, 2024 including the resultant Decree emanating therefrom dated the 5th June 2024 and all other consequential orders as well as the letter dated 4th July 2024 and direct the Respondents/ Applicants to file and serve their response to the Originating Summons within fourteen (14) days from the day hereof.
I find that this Court is not functus oficio in dealing with an application to set aside a default judgment.
Each party to bear their own costs.
I however find the Notice of Preliminary Objection dated the 17th February 2025 unmerited and will disallow it.
Issues in the judgment
#Judgment does not state the case number of the suit or the names of the parties in a caption; the suit property number (LR No. 209/10715) and the parties are identified only from the body of the judgment
The double role labels 'Respondents/Applicants' and 'Applicant/Respondent' are used inconsistently, and the 2nd Respondent's company name (Feridan Graphic Limited) appears only in narrative, not as a defined party
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanyua v Kariuki & another (Environment & Land Case E023 of 2023) [2025] KEELC 3465 (KLR)", Case Analysis (2025). Not stated in the judgment (Originating Summons dated 23rd November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3465/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.