Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKericho ELC Originating Summons dated 18th May, 2023 (particulars not stated in the ruling)

Byegon v Agricultural Finance Corporation; Chelogoi (Proposed Interested Party) (Enviromental and Land Originating Summons E006 of 2023) [2025] KEELC 2868 (KLR)

Environment and Land Court of Kenya
27 March 2025
6,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

A Kericho court cancelled an adverse-possession judgment won without proper notice, ruling email service only counts when sent to your actual email address.

What this practically means

#

Executive summary

#
This ruling by L. A. Omollo, J of the Environment and Land Court at Kericho determines the Defendant's Notice of Motion dated 22nd July, 2024 seeking to set aside the judgment of 2nd May, 2024, in which the court had declared that the Plaintiff had acquired the suit parcel Kericho/Kipchorian/Lelu Block 5 (Kebeneti)/71 by adverse possession after an undefended formal proof. The Defendant contended it was never served with the pleadings, that service was allegedly effected by email to an address other than its own, and sought joinder of an occupier as Interested Party and an order compelling the Land Registrar to lodge a caution. The court framed five issues. On res judicata, it held the question of service was never determined in the earlier proceedings and reliance on affidavits of service does not estop challenge to their contents. On setting aside, the court found the affidavits of service showed service through info@agrifinance.org rather than the Defendant's confirmed address legalafc@gmail.com, and since email service is proper only where sent to the last known address, service was improper and the judgment was set aside. Joinder of Grace Chelagat Chelogoi was refused as the Defendant failed to demonstrate her stake, prejudice, or contribution to settling the questions in the suit. The order compelling the Registrar to register a caution was refused, registration of cautions being administrative with judicial review as the remedy if refused. Costs were made to abide the outcome of the suit, directions were given for filing a defence and setting the suit down within fixed periods.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the issue of service is res judicata
  2. 2.Whether the Court should set aside the judgment delivered on 2nd May, 2024
  3. 3.Whether Grace Chelagat Chelogoi should be joined to the suit as an Interested Party
  4. 4.Whether an order should be issued to compel the Land Registrar Kericho to place a caution on land parcel No. Kericho/Kipchorian/Lelu/Block 5 (Kebeneti) 17
  5. 5.Who should bear costs of the application

Key legal issues

#
01

Whether the issue of service was res judicata

Holding

Service was not res judicata because it was never an issue for determination or the subject of a ruling in the earlier proceedings

Reasoning

The Defendant argued the issue of service had been decided when the court fixed the matter for formal proof. The court examined the record and found only directions that the Originating Summons proceed by viva voce evidence. Since there was no ruling on service, the elements of Section 7 of the Civil Procedure Act, which must be satisfied conjunctively, were not met. Reliance on an affidavit of service cannot estop challenge to its contents.

p. 8
02

Whether the judgment of 2nd May, 2024 should be set aside

Holding

The judgment was set aside because the affidavits of service showed service through info@agrifinance.org, not the Defendant's known address legalafc@gmail.com

Reasoning

The affidavits of service sworn by Onesmus Langat showed service by email to info@agrifinance.org, while both parties confirmed the Defendant's email was legalafc@gmail.com. Email service is only proper if sent to the last known address. Absent proof that the address used was the last known one, service was improper, the judgment was irregularly obtained, and the discretion to set aside was exercised judiciously in favour of doing substantial justice.

p. 10
03

Whether the Proposed Interested Party should be joined

Holding

Joinder refused; the threshold in Order 1 Rule 10(2) and the Muruatetu criteria were not met

Reasoning

Applying the Muruatetu elements and Skov Estate, a proposed interested party must demonstrate a clear, proximate stake, prejudice from non-joinder, and the submissions it intends to make. The Defendant, oddly the party seeking joinder, only alleged the Proposed Interested Party was in occupation, without demonstrating her stake or prejudice. The court also noted it was unclear whether she was even aware of, or consented to, the application.

p. 12
04

Whether the Land Registrar should be compelled to register a caution

Holding

Refused; caution registration is administrative and judicial review is the proper remedy if the Registrar declines to register one

Reasoning

Section 71 of the Land Registration Act permits persons claiming rights in land to lodge cautions, but the court, citing Husssein Ali Dima, held that registration of a caution is administrative. The Applicant did not show it had applied for a caution and been refused. If refused, the proper remedy is judicial review, not this application.

p. 13

Legal principles established

#
  • Facts deponed in an affidavit of service are deemed true until challenged, and a court's earlier reliance on them does not estop a party from questioning their veracity
  • Service by email is proper only when documents are sent to the recipient's last known email address
  • Where a defendant demonstrates it was not served with pleadings, an ex parte judgment must be set aside unconditionally

Court orders

#
  1. 1.The Judgment delivered by this Honourable Court on 2nd May, 2024 is hereby set aside
  2. 2.The Applicant shall file and serve its response to the Originating summons within 7 days of the date hereof
  3. 3.The suit shall be set down for directions within 14 days
  4. 4.Cost of the application shall abide the outcome of the suit

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 10 Rule 11 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya

Relief refused

#

Joinder of Grace Chelagat Chelogoi as Interested Party

The Defendant failed to demonstrate her stake in the suit, the prejudice she would suffer, or how her presence would assist in settling the questions in the suit

p. 12

Order compelling the Land Registrar Kericho to place a caution on the suit parcel

Lodging a caution is an administrative process; the Applicant did not show it applied for registration of a caution and that the Registrar declined, in which case judicial review would be the remedy

p. 13

Costs

Cost of the application shall abide the outcome of the suit

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 find that the question of service upon the Defendant/Applicant is not res judicata.
p. 9res judicata
Given the said circumstances, it is my view that the Defendant/Applicant was not properly served with the pleadings in this matter.
p. 10service of process
My view is that the Defendant/Applicant has demonstrated that it was not served with the pleadings in this matter and nothing is easier than to set aside the judgment delivered on 2nd May, 2024.
p. 11setting aside ex parte judgment
The Judgment delivered by this Honourable Court on 2nd May, 2024 is hereby set aside.
p. 14final orders
The Applicant shall file and serve its response to the Originating summons within 7 days of the date hereof.
p. 14final orders
Cost of the application shall abide the outcome of the suit.
p. 14costs

Issues in the judgment

#
minor

The suit parcel number is inconsistently recorded: the pleading and most passages cite Block 5 (Kebeneti)/71, but the issue framing and rulings on the caution refer to Block 5 (Kebeneti) 17

minor

The judgment records two different email addresses for the Defendant at different points: legalafc@gmail.com and legalfc@gmail.com

minor

The ruling states the Plaintiff had already been issued a title deed for the suit parcel, yet the Defendant sought a caution against transfer, and the judgment of 2nd May, 2024 set aside here is described both as default judgment entered in default of appearance and as a judgment after formal proof

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Byegon v Agricultural Finance Corporation; Chelogoi (Proposed Interested Party) (Enviromental and Land Originating Summons E006 of 2023) [2025] KEELC 2868 (KLR)", Case Analysis (2025). Kericho ELC Originating Summons dated 18th May, 2023 (particulars not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2868/eng@2025-03-27

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