Lua & another v Nzioka & 7 others (Environment & Land Case E011 of 2023) [2025] KEELC 4086 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment because the defendants' lawyer hadn't been paid, allowing them to finally file their defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the interlocutory judgment entered herein on 2nd May, 2024 should be set aside
Key legal issues
#Whether the regular interlocutory judgment should be set aside
Set aside; the reason for default was understandable, the delay was not inordinate, no draft defence was annexed but the defence raises triable issues given the defendants' long occupation of the suit property, and the respondent would suffer no prejudice.
The court applied the James Kanyita Nderitu test for setting aside regular default judgments: reason for failure to file defence, length of delay, whether triable issues are raised, and prejudice. Failure to pay fees explained the default; occupation since 2014 showed triable issues on the defendants' presence on the land; the roughly three-month delay was not inordinate and no prejudice to the respondents was shown.
Whether there was valid service of summons to enter appearance
Service was effected; the applicants had instructed an advocate who entered appearance, so the judgment was regular.
The court found it inconsistent for the applicants to deny service when their advocate had filed a memorandum of appearance on their instruction. It held there was service, entry of appearance, but failure to file defence, making the entry of judgment regular.
Legal principles established
#- Where a defendant was duly served and entered appearance but failed to file a defence, the resulting default judgment is regular and may be set aside under Order 10 Rule 11 in the court's discretion.
Court orders
#- 1.The interlocutory judgment entered on 2nd May, 2024 is set aside
- 2.The Applicants are granted leave to file their defence within 14 days
- 3.The costs of the application shall be in the cause
The bench
#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 (discretion to set aside regular default judgment)
Relief refused
#Prayer 1 - leave for the advocate to cease acting for the 1st to 5th Defendants
Withdrawn by the Applicants' advocate on 9th December 2024 as his fees had been paid
Costs
The costs of this application shall be in the cause.
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.
I therefore proceed to set aside the interlocutory judgment entered on 2nd May, 2024. The Applicants are granted leave to file their defence within 14 days. The costs of this application shall be in the cause.
In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment
I find that there was service and entry of appearance but there was failure to file defence. This being the case the entry of judgment which followed was a regular one.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lua & another v Nzioka & 7 others (Environment & Land Case E011 of 2023) [2025] KEELC 4086 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4086/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.