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ELCDismissedNot stated in judgment beyond the 2019 reported citation and two motions (dated August 9, 2024 and January 31, 2024)· [2025] KEELC 4288 (KLR)

Kiguru & another v Charo & another; Mutiso (Interested Party) (Environment & Land Case 33 of 2016) [2025] KEELC 4288 (KLR)

Environment and Land Court
5 June 2025
EME. K. Makori
2,470 words in judgment
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The bottom line

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A Malindi court refused to reopen a 2019 land judgment and rejected a buyer's objection, confirming that earlier purchasers and diligent buyers win in Kenya.

What this practically means

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Executive summary

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The Environment and Land Court at Malindi (E. K. Makori J) ruled on two interlocutory motions arising from a land sale dispute over portions excised from Kilifi/Mtwapa/393. The first motion, dated August 9, 2024, by the 1st defendant sought to set aside the ex parte judgment of Olola J. dated March 28, 2019, citing the death of her former advocate Maranga Maosa and asserting a meritorious defence. The court found that service had been properly effected before the ex parte hearing, that there was no evidence of when the advocate died or that new counsel was formally appointed, and that over five years of delay, during which eviction notices issued, demonstrated a lethargic litigant. Relying on Shah v Mbogo and CMC Holdings Ltd v Nzioki, the court held the discretion to set aside is meant to prevent injustice, not reward delay, and noted that Olola J.'s detailed analysis showed no meritorious defence; the motion was dismissed with costs. The second motion, an objection dated January 31, 2024, by an objector claiming purchaser's interest in Kilifi/Mtwapa/5234 under a 2017 agreement and 2018 title, was also dismissed. The court applied the Krep Bank standard requiring an objector to prove a legal or equitable interest on a balance of probabilities, found the plaintiffs' 2010 agreement prior in time and the objector fixed with notice of the pending litigation, and held the objector's remedy lies in indemnity from the 1st defendant. Both applications were dismissed with costs.

Key legal issues

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01

Whether to set aside the ex parte judgment of March 28, 2019 and allow the 1st defendant to defend the suit

Holding

Application dismissed; service was properly effected, delay exceeded five years, no evidence of a replacement advocate or meritorious defence

Reasoning

Olola J. had recorded satisfaction that defendants were duly served before proceeding ex parte. The record gave no date of death of the former advocate and no proof of appointment of new counsel. Since 2019, eviction notices had issued, and the 2024 application showed a lethargic litigant seeking to penalize the plaintiffs. Even on the merits, Olola J.'s analysis showed no defence. The discretion under Shah v Mbogo and CMC Holdings was therefore not exercisable in the applicant's favour.

p. 2
02

Whether the objector's objection to eviction should be allowed

Holding

Objection dismissed; the objector failed to establish a superior legal or equitable interest

Reasoning

The plaintiffs' agreement was executed on May 14, 2010 while the objector's agreement with the 1st defendant was dated October 17, 2017, with title issued on March 21, 2018. Accepting the Krep Bank principle that an objector must prove a legal or equitable interest on a balance of probabilities, the court found the objector knew or should have known through due diligence of the pending suit. Under the first-in-time principle the plaintiff's claim prevails, and the objector's remedy is indemnity from the 1st defendant.

p. 5

Legal principles established

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  • Setting aside an ex parte judgment is a discretionary remedy exercised judiciously to prevent injustice, not to reward litigants who deliberately delay the administration of justice.
  • In setting-aside applications the court must also consider whether the applicant has a reasonable defence raising triable issues.
  • An objector in objection proceedings bears the burden of proving a legal or equitable interest in the property on a balance of probabilities.
  • A purchaser must conduct due diligence on pending litigation affecting the property; the earlier purchaser holds the superior claim.

Court orders

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  1. 1.The motion application dated August 9, 2024 is dismissed with costs
  2. 2.The objections presented (objection dated January 31, 2024) are dismissed with costs

Authorities

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Cases cited (6)

  • Shah v Mbogo & Another
    [1967] EA 116
  • CMC Holdings Ltd v Nzioki
    [2004] KLR 173
  • Edward Marenye Kiguru & another v Nyevu Kilango Charo & another
    [2019] KEELC 3735 (KLR)
  • Marita Peeush Mahajan –vs Yashwant Kumani Mahajan
    (2017) eKLR
  • Krep Bank v Basilio Pascal Kiseli and 2 others
    [2012] eKLR
  • AKIBA BANK LTD VS JETHA & SONS LTD
    (2005) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit and interlocutory applications (specific provision not stated in the judgment)

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, "Kiguru & another v Charo & another; Mutiso (Interested Party) (Environment & Land Case 33 of 2016) [2025] KEELC 4288 (KLR)", Case Analysis (2025). Not stated in judgment beyond the 2019 reported citation and two motions (dated August 9, 2024 and January 31, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4288/eng@2025-06-05

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