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ELCDismissedNot stated in judgment

Beshai Tropical Gardens Limited v Nyangori & 2 others (Environment & Land Case 130 of 2016) [2025] KEELC 3982 (KLR)

Environment and Land Court
15 May 2025
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo a two-year-old land judgment because the defendants waited too long and had no documents proving their case.

What this practically means

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Executive summary

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Following an undefended suit in which judgment was entered for the Plaintiff on 2nd March 2023 and eviction orders issued, the Defendants filed a Notice of Motion dated 29th January 2025 seeking to set aside the default judgment and leave to file a defence. They learned of the judgment only in January 2025 when an eviction order was served, contended that the suit land was unsurveyed, unregistered wayleave land for electricity and a fire hydrant, that substituted service by newspaper advertisement was ineffective, and that condemning them unheard violated natural justice. The Plaintiff, represented by its director Ms. Salome Gakenia Kabando, opposed the application, asserting proper substituted service ordered on 26th May 2021 and producing a Letter of Allotment dated 3rd May 1996, Beacon Certificate, Sale Agreement and rates receipts as proof of root of title. The court framed a single issue: whether the judgment of 2nd March 2023 should be set aside and leave to defend granted. Applying Order 10 Rule 11 of the Civil Procedure Rules and Court of Appeal authority on the judicial nature of the discretion, the court held that the Defendants were properly served by substituted service, were guilty of laches in moving almost two years after judgment, and had produced no documents proving the wayleave claim. Since the decree had been executed and the Plaintiff had taken possession on 26th February 2025, setting aside would cause undue hardship. The court also declined to treat the Defendants' submission that the County had evicted the Plaintiff, finding it evidence from the bar. The application was dismissed with costs on 15th May 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether judgment entered on 2nd March 2023 should be set aside and the Defendants granted leave to file a defence

Key legal issues

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01

Whether the default judgment of 2nd March 2023 should be set aside under Order 10 Rule 11 of the Civil Procedure Rules

Holding

The application was dismissed: the Defendants were properly served by substituted service, were guilty of laches in moving the court almost two years later, and the executed decree meant setting aside would cause undue hardship to the Plaintiff

Reasoning

The court applied Order 10 Rule 11 and Court of Appeal authority requiring the discretion to set aside to be exercised judiciously on evidence. Substituted service by newspaper advertisement, ordered by the court on 26th May 2021, was not denied. The Defendants produced no documents proving the suit land was wayleave. Delay of almost two years, and the fact that the decree had been executed with the Plaintiff in possession, weighed against setting aside.

p. 5
02

Whether the Defendants' draft defence raised triable issues warranting setting aside

Holding

No - the allegation that the suit land is unsurveyed wayleave land was unsupported by any documents, while the Plaintiff produced a Letter of Allotment, Beacon Certificate, Sale Agreement and rates receipts demonstrating root of ownership

Reasoning

The court found the Plaintiff's ownership documents, produced during the hearing, demonstrated the root of its title. It reasoned that it was implausible that Nairobi City County would issue a Letter of Allotment, Beacon Certificate and receive rates for land that was wayleave. The Defendants' bare assertion that the land was wayleave, without documentary proof, could not authenticate a triable issue.

p. 4

Legal principles established

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  • A regular judgment entered after proper substituted service may only be set aside on just terms, and the judicial discretion to set aside must be exercised on fixed principles, evidence and sound legal principles
  • A party alleging that suit land is public wayleave must produce documentary proof of that allegation

Court orders

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  1. 1.The Notice of Motion application dated 29th January 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (inherent jurisdiction to set aside default judgment)

Relief refused

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Setting aside the judgment entered on 2nd March 2023

Defendants guilty of laches, were properly served by substituted service, draft defence raised no proven triable issues, and the decree has already been executed so setting aside would cause undue hardship to the Plaintiff

p. 5

Leave to file a defence and defend the suit

Fell with the dismissal of the application; no prima facie defence was demonstrated

p. 4

Costs

Application dismissed with costs (costs to the Plaintiff)

Quotable passages

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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 circumstances, I find the Notice of Motion application dated the 29th January 2025 unmerited and will proceed to dismiss it with costs.
p. 5Disposition - dismissal of the application
In my view I am unable to set aside the judgement as the application has been brought too late in the day.
p. 5Laches and delay in setting aside default judgment
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.
p. 3Order 10 Rule 11 Civil Procedure Rules - power to set aside default judgment
I hence find that the Defendants were properly served.
p. 5Validity of substituted service
The question we need to ponder is how would Nairobi City County Government issue a Letter of Allotment, Beacon Certificate and receive land rates for land which is a wayleave for power and sewer line as claimed by the Defendants.
p. 4Proof of wayleave allegation versus documentary root of title

Issues in the judgment

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minor

The judgment identifies the coram only by signature; the suit number, parties' full names and court station are not stated in the extract

minor

The Defendants' claim that Nairobi City County evicted the Plaintiff and surrendered the land was made only in submissions, not by affidavit, and the court found it unsupported

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Beshai Tropical Gardens Limited v Nyangori & 2 others (Environment & Land Case 130 of 2016) [2025] KEELC 3982 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3982/eng@2025-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.