African Inland Church Kenya Trustees Registered v Nzomo (Environment & Land Case 33 of 2018) [2025] KEMC 60 (KLR)
The bottom line
#A Kenyan court refused to revive a defendant's land case, ruling that nearly a year of unexplained delay forfeits any right to a second chance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are suficient grounds to warrant setting aside of the Judgment herein and granting the defendant leave to defend the suit
- 2.Whether there are suficient grounds to extend time for the defendant to file witness statements
- 3.Whether there are suficient grounds to recall the plaintifi's witnesses for further crossexamination
- 4.What orders should the court make with respect to costs of the application
Key legal issues
#Whether the judgment should be set aside and the defendant allowed to defend the suit
The application was dismissed; the delay was inordinate and unexplained, the defendant was not candid, and was guilty of laches.
The court found the power to set aside a default judgment is discretionary, guided by Patel v EA Cargo Handling Services and Shah v Mbogo. The defendant had been advised on 18/9/2023 to file an application to re-open his case but took almost one year, and seven months to seek setting aside. He was present when the judgment date was set yet claimed he was never served with judgment notices, which the record contradicted. Acting in person and the emotive nature of a land dispute did not justify the delay.
Whether the defendant should be granted leave to file witness statements (extension of time)
Refused; the defendant did not meet the threshold in the Salat principles for extension of time.
The court applied the Supreme Court's principles in Salat v IEBC that extension of time is an equitable remedy available only to a deserving party who lays a basis. The defendant had been granted leave on 16/11/2021 and a further 14 days on 23/1/2023 but failed to comply each time, gave no explanation, and did not annex draft witness statements. His previous conduct and explained delay disentitled him.
Whether the plaintifi's witnesses should be recalled for further cross-examination
Refused; no reason was given and the prayer necessarily failed with the refusal to re-open.
Section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules confer discretion to recall witnesses, but per Fernandes v Noronha the discretion is exercised in exceptional cases where injustice would otherwise occur. No reason at all was advanced. Since judgment had been delivered, recalling witnesses required the case to be re-opened, which the court had declined.
Legal principles established
#- A party in default cannot claim the court's indulgence as of right; it must be earned through a full, honest and acceptable explanation of the default.
- Inordinate and unexplained delay defeats an application to set aside an ex parte judgment or re-open a case.
- The overriding objective provisions cannot be invoked as a matter of course to excuse a party's failings.
Court orders
#- 1.The application dated 4/9/2024 is dismissed
- 2.Costs of the application to the plaintifi
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 12 rule 7 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Setting aside the resultant judgment dated 18/3/2024 and hearing the defence on merit
The delay in filing the application was inordinate and unexplained; the defendant was not candid, was guilty of laches, and failed to lay a basis for the discretionary relief.
Recall and further cross-examination of the plaintifi's witnesses
No reason was given for the recall; discretion to recall witnesses should be exercised in exceptional cases where injustice would otherwise occur, and the case would first have to be re-opened.
Leave to file witness statements
The defendant had twice been granted leave to file witness statements and failed; no draft statements were annexed; delay was inordinate and unexplained.
Costs
The application is dismissed with costs to the plaintifi.
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.
Consequently, I find that the application dated 4/9/2024 is devoid of merit. I proceed to dismiss it with costs to the plaintifi.
The defendant cannot go into slumber then wake up and expect the court to assist him without even explaining why he was asleep all that time.
Delay is an anathema to a fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution.
Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.
re-opening of a case is an indulgence requested from the court by a party in default. He is not entitled to the indulgence.
Issues in the judgment
#Paragraph numbering skips from 32 to 34; paragraph 33 is absent from the judgment as provided.
Recurrent typographical inconsistencies in the judgment (e.g. 'plaintifi', 'suficient', 'afidavit') and an internal reference to 'the plaintifi/applicant' where the defendant/applicant is meant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Inland Church Kenya Trustees Registered v Nzomo (Environment & Land Case 33 of 2018) [2025] KEMC 60 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/60/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.