Jackson Kariuki Gikando v Stephen Ndegwa Mwangi & 2 others [2021] KEELC 2431 (KLR)
The bottom line
#A Kenyan court refused to wipe out all land court orders in a family land dispute, ruling you must pinpoint the specific flawed order you want set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether all ELC court orders issued since the suit assumed an ELC character could be set aside
The prayer was refused. Setting aside orders is limited to lapses in form and procedure, and the applicant failed to identify any specific order tainted by procedural infraction.
The court relied on Order 10 Rule 11 CPR and authorities establishing that discretion to set aside orders applies to irregular judgments or procedural lapses causing prejudice. The applicant sought a blanket order covering all orders in the suit and consolidated files (Misc. Application No. 122 of 2002 and Misc. Application No. 4 of 2014) without pinpointing any specific order resulting from procedural infraction. An omnibus order of that kind could not be granted.
Whether the file should revert to the High Court as a probate suit
The prayer was disallowed because the succession dispute had been heard and determined and the latest orders stood unchallenged.
The subject land (NGARIAMA/MERICHI/461, now subdivided into 742, 1416 and 1417) had been the subject of succession proceedings with objection proceedings giving rise to Misc. Application Cases No. 122 of 2002 and No. 4 of 2014. The latest orders from those cases, now transferred to the ELC, had not been set aside or appealed against, so nothing remained for the High Court to determine on the probate aspect.
Costs of the application
No order as to costs, applying Section 27 of the Civil Procedure Act, because the application was not defended.
Section 27 of the Civil Procedure Act vests discretion in the court on costs, with costs generally following the event unless the court otherwise orders for good reason. Since the Notice of Motion was dismissed and the respondents filed neither a replying affidavit nor grounds of opposition, the court exercised its discretion to order that there be no order as to costs.
Legal principles established
#- The grounds for setting aside a decree or order are limited to deviations from and lapses in form and procedure; an omnibus order setting aside all orders without specifying any particular order is untenable
- Where a procedural infraction causes no injustice by way of injurious prejudice, it should not have an invalidating effect; justice must not be sacrificed on the altar of strict adherence to procedural law
- A judgment entered without proper or any service of summons is an irregular judgment liable to be set aside ex debito justitiae, as a matter of judicial duty rather than discretion
Court orders
#- 1.The Notice of Motion dated 19th February 2020 is dismissed
- 2.No order as to costs, the application having been undefended
- Jurisdiction invoked
- Articles 35, 50(1) and 159 of the Constitution of Kenya; Sections 1A, 1B, 3A, 18, 60, 100 of the Civil Procedure Act; Sections 3, 13, 19 of the Environment and Land Court Act; Order 51 Civil Procedure Rules; Rules 49 & 73 of the Probate and Administration Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kariuki Gikando v Stephen Ndegwa Mwangi & 2 others [2021] KEELC 2431 (KLR)", Case Analysis (2021). ELC Misc. Application No. 4 of 2014 (Nyeri) (transferred to Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2431/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.