Sumbi & another v Keronya (Environment and Land Case Civil Suit 306 of 2017) [2025] KEELC 7773 (KLR)
The bottom line
#A Kenyan court refused to set aside a default judgment because substituted service by newspaper was valid and the defendant had no defence or excuse for the delay.
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 judgment dated 18/10/2023 and the consequential orders should be set aside in the circumstances of the case
- 2.Whether the impugned judgment is an irregular or regular default judgment, and if so, what orders may be issued by the court
Key legal issues
#Whether the default judgment of 18/10/2023 was irregular or regular
It was a regular default judgment because substituted service was ordered and effected, evidenced by a return of service of 18/06/2018 which the defendant did not contradict
The court traced the record: the suit was filed in 2017; the plaintiff's counsel informed the court the defendant was evasive; substituted service by advertisement in the Standard Newspaper was permitted on 24/4/2018 and effected on 27/04/2018 and 3/05/2018; the defendant failed to enter appearance within 21 days and the suit proceeded to formal proof. The return of service evidenced due service and was uncontradicted.
Whether the regular default judgment should be set aside
No; the discretion was exercised against the defendant for lack of justification, absence of a draft defence, unexplained delay, notice of execution served on him in January 2025, and prejudice to the plaintiffs in a very old matter
Applying the James Kanyiita Nderitu factors, the defendant gave no reason for his failure to defend, tendered no draft defence revealing triable issues, did not deny service of the notice of entry of judgment and execution via his telephone on 22/01/2025, and did not explain his inaction thereafter. The judgment had stood about one and a half years and the matter was roughly eight years old, so setting it aside would significantly prejudice the plaintiffs.
Legal principles established
#- A default judgment entered against a defendant who has not been served or properly served with summons is irregular and void ab initio and may be set aside suo sponte without regard to triable issues or delay
- Where a judgment is a regular default judgment, the court exercises an unfettered discretion considering the reason for failure to defend, time elapsed, triable issues, prejudice and the interests of justice
Court orders
#- 1.The notice of motion dated 7/03/2025 is dismissed
- 2.Costs of the motion awarded to the plaintiffs, assessed at Kshs. 15,000/=
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 50 & 159(2)(d) & (e) of the Constitution of Kenya, Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Orders 10 Rule 11, 22 Rule 22(1), 45 Rule 1 and 50 Rule 6 of the Civil Procedure Rules
Relief refused
#Setting aside/vacating the interlocutory judgment and decree dated 18/10/2023 and all consequential orders
The judgment was a regular default judgment effected by valid substituted service; the defendant provided no grounds justifying the exercise of discretion in his favour, filed no draft defence showing triable issues, and the delay would prejudice the plaintiffs
Order for service of pleadings upon the defendant and leave to file defence
Flowing from the dismissal of the setting-aside application; no draft defence was submitted for assessment
Summoning of the process server for cross-examination on the affidavit of service
Not granted; the court found service duly effected and uncontradicted
Costs
The notice of motion dated 7/03/2025 dismissed with costs awarded to the plaintiffs, assessed at Kshs. 15,000/=.
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.
Evidence of such service is contained in the return of service of 18/06/2018, which shows pleadings and summons were served on 3/05/2018. The defendant has not contradicted this service, and this court finds that the judgment is a regular default judgment.
In such circumstances, the default judgment is void ab initio. The court is not obliged to be prompted by a party; upon becoming aware of the irregularity, the court may sua sponte set aside the judgment.
It determines that the notice of motion dated 7/03/2025 lacks merit and is consequently dismissed with costs awarded to the plaintifis. The plaintifis’ costs of the motion are assessed at Kshs. 15,000/=.
Issues in the judgment
#The judgment repeatedly misdescribes the defendant as 'the 1st defendant' although only one defendant appears on the record
The plaintifis' deposition alternately describes the order permitting substituted service as dated 24/4/2018 while the court records counsel informing the court on 5/04/2018
The case title, suit number and names of the parties are not stated in the body of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sumbi & another v Keronya (Environment and Land Case Civil Suit 306 of 2017) [2025] KEELC 7773 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7773/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.