Keya v Aloo (Sued as the Administrator of the Estate of the Late Moses Kitagwa Allo) (Enviromental and Land Originating Summons E005 of 2024) [2025] KEELC 7417 (KLR)
The bottom line
#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 applicant was served with the pleadings and hearing notice
- 2.Whether the applicant gave a credible explanation for non-participation in the ex parte proceedings
- 3.Whether the applicant has a defence raising triable issues warranting setting aside of the ex parte proceedings
- 4.Whether prejudice to the plaintiff can be compensated by costs
Key legal issues
#Whether the applicant was served and whether his explanation for non-participation was credible
The court found service was proved by two detailed affidavits of service and the explanation was not credible
The process server swore two affidavits detailing how and where he located the applicant and effected service on 7th February 2025 and 12th/13th June 2025. The applicant gave no reason to doubt the process server and did not seek to cross-examine him. The court therefore found service proved and the explanation for non-participation not credible.
Whether the ex parte proceedings should nonetheless be set aside
Yes; despite lack of credible explanation, the draft Replying Afidavit raised triable issues and the plaintiff's prejudice was compensable by costs
The court weighed the plaintiff's prejudice (having testified and closed his case) against the applicant's draft Replying Afidavit, which raised triable issues. Guided by the overriding objective of substantive justice, the court exercised its discretion in favour of the applicant, imposing thrown away costs as the compensatory measure.
Legal principles established
#- An applicant for setting aside ex parte proceedings must explain the non-participation, demonstrate a good defence raising triable issues, and show no prejudice to the other party
- Uncontroverted affidavits of service by a process server, not tested by cross-examination, establish service
Court orders
#- 1.The ex parte proceedings taken herein are set aside
- 2.The draft Replying Afidavit is deemed the duly filed Replying Afidavit upon payment of the requisite court filing fee, to be paid within 14 days
- 3.Thrown away costs of Kshs 20,000/= awarded to the Plaintiff
- 4.Matter listed for directions on the Originating Summons on 10/12/2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 Rule 15 of the Civil Procedure Rules, sections 1, 1A and 3 of the Civil Procedure Act and Article 159 of the Constitution of Kenya
Relief refused
#Costs of the application in the cause / dismissal of the application with costs
Application allowed on terms; costs by way of thrown away costs to the plaintiff instead
Costs
Thrown away costs of Kshs 20,000/= awarded to the Plaintiff; the Defendant's prayer for costs in the cause effectively superseded by the allowance of the application.
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.
The court finds that the applicant was indeed served with the pleadings and hearing notice. The explanation given for non- participation in the proceedings is not credible.
Perusal of the same shows that the applicant has a defence to the plaintifi’s claim that raises triable issues for which he should be given opportunity to be heard.
The plaintifi will no doubt be prejudiced if the proceedings are set aside. However, he can be compensated by an ward of costs.
i. The ex parte proceedings taken herein are set aside. ii. The draft Replying Afidavit is deemed the duly filed Replying Afidavit upon payment of the requisite court filing fee. The requisite court fees be paid within the next 14 days hereof. iii. Thrown away costs of Kshs 20,000/= awarded to the Plaintifi.
Issues in the judgment
#The judgment heading describes the court as deciding on an Originating Summons but the closing passage is labelled 'RULING'; also the case number and express court designation are not stated in the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keya v Aloo (Sued as the Administrator of the Estate of the Late Moses Kitagwa Allo) (Enviromental and Land Originating Summons E005 of 2024) [2025] KEELC 7417 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7417/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.