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ELCDismissedNot stated in judgment· [2025] KEELC 3425 (KLR)

Mwasi v Chai (Environment & Land Case E070 of 2021) [2025] KEELC 3425 (KLR)

Environment and Land Court
29 April 2025
MNMwangi Njoroge
938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi land court refused to undo a judgment, finding the defendant's claim that impostor lawyers represented him was not believable.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) on a notice of motion dated 17/1/2025 seeking to set aside an ex parte judgment of 17/2/2024. The underlying suit, commenced by plaint dated 9/8/2021, was brought by the plaintiff seeking declaration of ownership, cancellation and rectification of titles Kilifi/Roka/586 and Kilifi/Tezo/Roka/586, a permanent injunction and costs, on the basis that she purchased the parcel in 1983 from Salom Omar Thoya, paid in full and has remained in possession, but the defendant fraudulently procured registration in 2016. The defendant entered appearance and filed a statement of defence but did not testify, so judgment was entered for the plaintiff. The defendant's application sought setting aside on three grounds: no notice of hearing; that the advocates who appeared (Riziki Emukule and Birir & Co Advocates) were impostors without instructions, the defendant claiming he engaged one Bernard Bore who is not an advocate; and that he has a good defence. The plaintiff opposed in a replying affidavit, asserting the defendant admitted service and awareness of the suit, that the named firms were his advocates, and noting his failure to report any criminal conduct to police. The court found the impostor narrative incredible, noting the firms' standing at the station, the absence of any police complaint, Bernard Bore's failure to file any document, and the defendant's unexplained inaction since 2021. The application was dismissed with costs to the plaintiff.

Key legal issues

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Whether the judgment of 17/2/2024 should be set aside on grounds of lack of notice and impostor advocates

Holding

The application lacks merit and is dismissed; the court found the defendant not credible

Reasoning

The court found it incredible that well-known law firms at the Malindi station would impose themselves on an unwilling defendant. No complaint was lodged with police against the alleged impostor Bernard Bore, who filed no documents on the defendant's behalf. Since 2021 the defendant never established who his real advocate was or how he followed up with Bore. His evidence was therefore untruthful and uncontroverted judgment stands.

p. 3

Legal principles established

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  • A party seeking to set aside an ex parte judgment on grounds of impostor advocates bears the burden of demonstrating the imposter claim credibly; unexplained inaction over the years and absence of any complaint to authorities undermine such a claim.

Court orders

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  1. 1.The application dated 17/1/2025 seeking to set aside the judgment entered on 17/2/2024 is dismissed
  2. 2.Costs of the application awarded to the plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as the court hearing and determining the land dispute and consequential application)

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, "Mwasi v Chai (Environment & Land Case E070 of 2021) [2025] KEELC 3425 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3425/eng@2025-04-29

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