Midland Emporium Limited v County Government of Kisumu & another; Prime Bank Limited (Interested Party) (Environment and Land Case E007 of 2021) [2025] KEELC 6252 (KLR)
The bottom line
#A Kisumu court refused to set aside a default judgment because the defendants gave no credible excuse for ignoring the case and attached no draft defence.
What this practically means
#Executive summary
#Key legal issues
#Plausible explanation for non-participation
Not established
The Applicants admitted service but attributed non-participation to the resignation of the counsel conducting the matter and a human resource transition. The court found no evidence of the resignation claim and noted the suit was in court for about two years before hearing and over a year from hearing to the application, during which no replacement counsel was instructed. Indolence of the Office of the County Attorney could not be excused.
Good defence raising triable issues
Not demonstrated
Neither the Notice of Motion, the Supporting Affidavit nor the submissions addressed whether the Applicants had a defence or its nature. No draft defence was annexed, so the court could not assess triable issues. The court held that a draft defence ought to be annexed in applications of this nature, and that the point had therefore not been demonstrated.
Prejudice to the Respondent
Setting aside would be prejudicial
The Respondent had properly served the Applicants with the suit, pleadings and notices, obtained judgment after formal proof, and sought execution to bring the matter to conclusion. The Applicants, having been indolent, would restart the process if the judgment were set aside. The remedy exists in law but applicants must meet the threshold, which the Applicants failed to do.
Legal principles established
#- The threshold for setting aside an ex parte judgment requires an explanation for non-participation, a demonstration of a good defence raising triable issues, and absence of prejudice to the respondent; a draft defence should be annexed to enable the court assess triable issues.
- Sufficient cause for setting aside is a question of fact assessed in the varied and special circumstances of each case (as cited by the Applicants from Karani v Bildard Wachira).
Court orders
#- 1.The Notice of Motion dated 24th February 2025 is dismissed
- 2.Costs to the Respondent
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010, sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act Cap 21, Order 10 Rule 1 and Order 45 Rule 1 of the Civil Procedure (Revised) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Midland Emporium Limited v County Government of Kisumu & another; Prime Bank Limited (Interested Party) (Environment and Land Case E007 of 2021) [2025] KEELC 6252 (KLR)", Case Analysis (2025). Not stated in the ruling as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6252/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.