Nganga & another v Muthui & another; Mwangi t/a Kilimanjaro Housing Development (Intended Interested Party) (Land Case E019 of 2024) [2026] KEELC 28 (KLR)
The bottom line
#A Thika court allowed late defendants back into their case, but only after finding they were properly served and ordering them to pay Ksh 40,000 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 Defendants/Applicants were properly served with Summons
- 2.Whether the Defendants/Applicants failed to appear in Court at the hearing due to sufficient cause
Key legal issues
#Whether the Defendants/Applicants were properly served with summons
Service was properly effected both personally by a process server and by substituted service through the newspapers; the Applicants never sought to cross-examine the process server
The court perused the affidavits of service which the process server swore the Defendants refused to sign, and noted substituted service via newspaper. The Applicants denied service but did not summon the process server for cross-examination, leaving the presumption of service unrebutted. The court found a deliberate attempt to delay and obstruct the course of justice.
Whether the Applicants failed to attend court due to sufficient cause
The Applicants failed to demonstrate sufficient cause: they did not explain how they discovered the suit or the inordinate delay between the order of 13/03/2024 and their application of 8/05/2025
The court found the Applicants' explanation wanting, noting unexplained delay and reliance on Article 159(2) favouring substantial over technical justice. However, it held that reopening the case would serve substantial justice since the Plaintiffs showed no irreparable prejudice and did not oppose the joinder. The Notice of Motion was allowed with conditions.
Whether the intended Interested Party should be joined
Joinder was granted; the Plaintiffs did not address or oppose it, and the court took the position they were not opposed
The court observed that the Plaintiffs/Respondents did not address the joinder issue in their response, and inferred non-opposition. Combined with the preference for hearing both sides, the court allowed joinder and gave the intended Interested Party 14 days to file pleadings, subject to the same 14-day cut-off with automatic expungement.
Legal principles established
#- An affidavit of the process server raises a presumption of service, and the burden lies on the party denying service to rebut it, ideally by cross-examining the process server
- The court's discretion under Order 10 rule 11 to set aside default judgment is free but will not assist a party whose delay was deliberate
Court orders
#- 1.The Defendants/Applicants shall file and serve their Defence within 14 days from the date hereof
- 2.The prayer to allow joinder for Intended Interested Party is granted; the Intended Interested Party shall have 14 days to file any pleadings they wish to rely on at trial
- 3.Upon expiry of 14 days, no document filed after expiry of 14 days shall be admitted on record and shall stand automatically expunged from the Court record
- 4.The Defendants/Applicants shall pay thrown away costs of Ksh 40,000 to the Plaintiffs/Respondents before the next mention
- 5.Next mention shall be on 23/02/2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution of Kenya; Order 10 rule 11 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act
Relief refused
#Stay of delivery of Judgment set for 10/07/2025
The Court had, on its own motion, already arrested the Judgment by order dated 03/06/2025, so the prayer was overtaken by events
Setting aside of the order issued in default as sought on the basis of lack of service
The court found the Applicants were served by process server and by substituted service and were aware the suit was progressing
Costs
Thrown away costs of Ksh 40,000 to the Plaintiffs/Respondents, payable before the next mention; no order on the costs of the application itself
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 allow the Notice of Motion dated 8/05/2025 in the following terms
The Defendants/Applicants shall file and serve their Defence within 14 days from the date hereof.
The prayer to allow joinder for Intended Interested Party is hereby granted.
The Defendants/Applicants shall pay thrown away costs of Kesh 40,000 to the Plaintifis/ Respondents before the next mention.
There has to be an end to litigation and parties should not be encouraged to take judicial time for granted.
Issues in the judgment
#Internal inconsistency on the newspaper and date of substituted service: the court first refers to the Standard Newspaper dated 13/02/2025, later to the Daily Nation dated 13/02/2025, and again to the Daily Nation dated 10/02/2025
The applicants' pleadings reference a pending judgment yet the court records an order of 13/03/2024 by Justice Kemei whose content is not reproduced, and the judgment is dated 19 January 2026 while referring to a judgment scheduled for 10 July 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga & another v Muthui & another; Mwangi t/a Kilimanjaro Housing Development (Intended Interested Party) (Land Case E019 of 2024) [2026] KEELC 28 (KLR)", Case Analysis (2026). Not stated in judgment (Chamber Summons dated 8/05/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/28/eng@2026-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.