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ELCPartially AllowedNot stated in the judgment (suit land Nandi/Kombe/745)

Kili v Maiyo & 4 others (Environment and Land Case E014 of 2023) [2025] KEELC 5516 (KLR)

Environment and Land Court
23 July 2025
2,704 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a default land judgment because the plaintiff could not prove the process server was licensed or that all defendants were served.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet (G.M.A Ong'ondo, J) determined the 1st defendant's Notice of Motion dated 6th February 2025 seeking to set aside an ex parte judgment delivered on 14th November 2024, together with consequential orders, and leave to file a Statement of Defence and Counterclaim. The applicant contended she was never served with summons and pleadings; the affidavit of service was sworn by one Kemei Cheptei, whose licence as a process server was never proved, and service was purportedly effected only on the 1st and 2nd defendants despite judgment having been entered against all defendants. She also complained that the plaintiff had moved to subdivide the suit land, Nandi/Kombe/745, and to arrest and commit her to civil jail in execution. The plaintiff/respondent maintained he was the registered owner in occupation, that service complied with Order 5 Rule 3(a), and that there must be an end to litigation. The court framed two issues: whether the application was merited and what just orders should issue. Relying on Shah v Mbogo, James Kanyiita Nderitu and Yooshin Engineering, it held that a default judgment entered without proper service is irregular and must be set aside as of right. Finding no proof that the process server was licensed and no explanation for service on only two defendants, the court allowed the application, set aside the ex parte judgment, gave the applicant 14 days to file her defence and counterclaim (failing which the orders lapse), and ordered costs to be in the cause.

Questions the Court framed

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

  1. 1.Whether the instant application is merited?
  2. 2.Just orders to issue herein.

Key legal issues

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01

Whether the applicant was properly served with summons and pleadings

Holding

The applicant was not proved to have been properly served; the plaintiff failed to show the process server held an active licence, and service was effected on only two of the defendants

Reasoning

The court examined the Affidavit of Service sworn by Kemei Cheptei on 27th April 2023 and found no sufficient evidence that the process server was licensed at the material time. It also noted that service was purportedly effected only on the 1st and 2nd defendants despite the decree running against all defendants, and that Order 5 of the Civil Procedure Rules requires service on each defendant.

p. 6
02

Whether the ex parte judgment of 14th November 2024 was regularly obtained

Holding

The judgment was irregular and ought to be set aside

Reasoning

Applying James Kanyiita Nderitu and Yooshin Engineering, the court held that where service was not properly effected the resulting default judgment is irregular and must be set aside as a matter of right, regardless of whether the defendant has a defence. The court found the judgment technical in the sense described in Kanwal Sarjit Singh Dhiman.

p. 6

Legal principles established

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  • A default judgment entered against a defendant not served or improperly served is irregular and must be set aside ex debito justitiae as a matter of right, without conditions
  • The setting aside of an ex parte judgment is a discretionary exercise aimed at avoiding injustice, not at assisting a party who deliberately obstructed or delayed justice

Court orders

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  1. 1.The ex parte judgment entered on 14th November 2024 and the consequential orders are set aside
  2. 2.The 1st defendant/applicant to file and serve her Statement of Defence and counterclaim, if any, within 14 days from the date of the ruling, failing which the orders shall automatically lapse
  3. 3.Costs of the application to be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 48, 50 and 159 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7 and Order 22 Rule 22(1) of the Civil Procedure Rules, 2010

Relief refused

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None - the application was allowed as set out in prayers (e) and (g)

Court found the ex parte judgment irregular for want of proof of proper service

p. 6

Costs

Costs of this application to be in the cause.

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 light of the foregoing, it is my considered view that the ex parte judgment entered by this court on 14th November 2024, is irregular.
p. 6Irregularity of ex parte judgment for want of proper service
Costs of this application to be in the cause.
p. 6Costs order
I hereby direct the 1st defendant/applicant herein to file and serve her Statement of Defence and counterclaim, if any, in response to the suit within 14 days from the date of this ruling, failure to which the orders granted herein shall automatically lapse.
p. 6Final orders - leave to file defence subject to time limit

Issues in the judgment

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minor

Judgment does not state the suit's case number or a neutral citation; quoted block from Order 5 Rule 1 is mislabelled as Rule 1 although its content corresponds to later sub-rules

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, "Kili v Maiyo & 4 others (Environment and Land Case E014 of 2023) [2025] KEELC 5516 (KLR)", Case Analysis (2025). Not stated in the judgment (suit land Nandi/Kombe/745). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5516/eng@2025-07-23

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