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ELCPartially AllowedEnvironmental and Land Originating Summons E002 of 2024

Mainoya v Kongoacheke Enterprises Limited

Environment and Land Court
24 September 2026
2,124 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a default judgment against a company, ruling that implied authority suffices and a triable defence justifies a day in court.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (M.D. Mwangi, J) determined the defendant company's Notice of Motion dated 16 April 2026 seeking to set aside an ex-parte judgment delivered on 18 December 2025 and for unconditional leave to defend an originating summons concerning ownership and occupation of land. The plaintiff opposed, raising a preliminary objection that the deponent, Connie Nkirote Ngachu, lacked authority to act for the company, and contending that service was properly effected and that he had occupied the land for over twelve years. The court framed three issues: competency of the application, regularity of the default judgment, and grounds for setting it aside. On the first, it held that absence of a formal company resolution does not render proceedings a nullity, since authority under Section 35(1)(b) of the Companies Act, 2015 may be implied by conduct. On the second, it held that substituted service by newspaper advertisement, where ordered by the court, is not irregular, and the applicant had not shown the service was invalid; the judgment was therefore regular. On the third, the court exercised its discretion under Order 10 Rule 11: the proposed defence, anchored on a 2012 Machakos High Court judgment allegedly determining ownership of the suit property, raised a bona fide triable issue, and the name discrepancy between the proceedings was a matter for evidence. The court set aside the ex-parte judgment and consequential decree, granted unconditional leave to defend, directed filing of a response within 14 days, and ordered costs of the application 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 application is competent in view of the objection to the authority of the deponent
  2. 2.Whether the judgment of 18th December 2025 was regularly entered
  3. 3.Whether the Applicant has demonstrated sufficient grounds for setting aside the judgment and being granted leave to defend

Key legal issues

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01

Competency of the application given the deponent's alleged lack of authority

Holding

The objection was not determinative; the deponent explained her capacity as co-administrator of the deceased majority shareholder's estate and exhibited authority from the surviving shareholder

Reasoning

A company acts through duly authorized organs, but authority under Section 35(1)(b) of the Companies Act, 2015 may be express or implied and need not be in writing or filed. Implied authority by conduct suffices at this stage; whether it establishes the substantive proprietary claim is a separate question.

p. 2
02

Whether the ex-parte judgment of 18 December 2025 was regularly entered

Holding

The judgment was regularly entered; substituted service by newspaper advertisement is permissible where ordered by the Court, and the Applicant did not show the service was invalid

Reasoning

Order 5 Rule 17 permits substituted service where ordinary service cannot be effected. The relevant question is whether the court was satisfied on the material then before it and whether service complied with the order. Hindsight that another mode might have been more effective does not render the judgment irregular.

p. 3
03

Whether the judgment should nonetheless be set aside and leave to defend granted

Holding

Yes; the proposed defence raises a bona fide triable issue concerning the 2012 Machakos judgment and ownership of the suit property

Reasoning

Even a regularly entered judgment may be set aside under Order 10 Rule 11 upon just terms. The alleged prior judgment determining ownership of the same property is potentially dispositive; the name discrepancy ('Joseph Tomate Mainoya' vs 'Josephat Tumate Mainoya') is a question of evidence, not resolvable by bare assertion. Prejudice to the plaintiff can be met by costs.

Legal principles established

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  • The absence of a formal company resolution does not, without more, render proceedings instituted on behalf of a company a nullity; authority may be express or implied
  • A regularly entered default judgment may still be set aside under Order 10 Rule 11 upon terms as are just, where a bona fide triable issue is shown
  • A triable issue is one raising a prima facie defence that should go to trial, not one that must ultimately succeed

Court orders

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  1. 1.The ex-parte judgment delivered on 18th December 2025 and the consequential orders/decree arising therefrom are set aside
  2. 2.The Applicant, Kongoacheke Enterprises Limited, is granted unconditional leave to defend the suit
  3. 3.The Applicant shall file and serve its response to the Originating Summons within 14 days from the date hereof, after which parties shall take directions on the hearing of the Originating Summons
  4. 4.The costs of the application shall 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
Original jurisdiction under the Environment and Land Court Act over disputes concerning land; application under Order 10 Rule 11 of the Civil Procedure Rules, 2010

Relief refused

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Striking out of the application on the ground of the deponent's lack of authority

Authority to act for a company may be express or implied; absence of a formal resolution does not render the proceedings a nullity

p. 2

A declaration that the substituted service was invalid

Mere physical presence near the suit property does not establish that the court-ordered substituted service was irregular

p. 3

Costs

The costs of the application shall 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.

The ex-parte judgment delivered on 18th December 2025 and the consequential orders/decree arising therefrom are hereby set aside.
p. 5Final orders - setting aside default judgment
The Applicant, Kongoacheke Enterprises Limited, is granted unconditional leave to defend the suit.
p. 5Final orders - leave to defend
The costs of the application shall be in the cause.
p. 5Final orders - costs
This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
p. 4Judicial discretion under Order 10 Rule 11 (Shah v Mbogo)
Whether the two names refer to one and the same person is ultimately a question of evidence and cannot properly be resolved by a bare assertion.
p. 4Identity discrepancy and triable issue
a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered.
p. 3Regular vs irregular default judgment

Issues in the judgment

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minor

Role labels reversed: the defendant company is styled 'Respondent/Applicant' and the plaintiff 'Applicant/Respondent'

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, "Mainoya v Kongoacheke Enterprises Limited", Case Analysis (2026). Environmental and Land Originating Summons E002 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5892/eng@2026-09-24

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