Wekesa v Keya & 6 others; Wafula & 2 others (Respondent) (All Substituted as Legal Representatives of the Estate of Situndo Otsieno) (Environment & Land Case 59 of 2015) [2025] KEELC 352 (KLR)
The bottom line
#The Environment and Land Court in Busia set aside a 2022 land judgment and revived a family land dispute so both sides could finally be heard on merit.
What this practically means
#Executive summary
#Key legal issues
#Setting aside an ex parte judgment where service is disputed
The judgment was set aside notwithstanding an affidavit of service, because the Respondents as beneficiaries of the judgment conceded and the Defendants' counter-claim was never determined
The court's discretion under Section 3A of the Civil Procedure Act is unlimited and geared towards doing justice. The Defendants alleged non-service despite an affidavit of service; more decisively, the Respondents, legal representatives of the deceased plaintiff, supported setting aside. The judgment also failed to address the Defendants' counter-claim, and Article 50(1) guarantees the right to be heard. Justice therefore required reinstating the suit for determination on merit.
Substitution of a deceased plaintiff and revival of an abated suit
The Respondents, having obtained a grant of letters of administration to the deceased plaintiff's estate, were substituted as plaintiffs and the suit revived
Following the plaintiff's death, the Respondents were jointly issued with the grant of letters of administration and could prosecute the suit. The court allowed the prayer for substitution and revival so the claim and counter-claim could be litigated between the proper parties.
Legal principles established
#- The court's discretion to set aside a judgment is wide and unfettered, considering whether a defence raises triable issues and prejudice to the other side
- Where the beneficiary of a judgment concedes to its setting aside, the court should not stand against such a request
- Denying a party a hearing should be the last resort of a court
Court orders
#- 1.The judgment and all subsequent orders dated 28th September 2022 set aside, only in respect to the claim and counter-claim between the Plaintiff and the Defendants
- 2.The suit between the Plaintiff and the Defendants is revived and the deceased Plaintiff substituted by the Respondents as Plaintiffs
- 3.Defendants to file and serve their amended defence and counter-claim and any additional statements or documents within 15 days
- 4.Respondents as Plaintiffs to file and serve their reply and defence to the counter-claim within 15 days of service
- 5.Parties to appear before the Deputy Registrar on 17th February 2025 for pre-trial and to confirm compliance and take a date for hearing
- 6.Each party to meet their own costs of the Motion
- Jurisdiction invoked
- Order 12 Rule 7 and Order 24 Rule 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Keya & 6 others; Wafula & 2 others (Respondent) (All Substituted as Legal Representatives of the Estate of Situndo Otsieno) (Environment & Land Case 59 of 2015) [2025] KEELC 352 (KLR)", Case Analysis (2025). Not stated in the extract (Busia ELC; suit land Marachi/Elukongo/1293). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/352/eng@2025-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.