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ELCPartially AllowedMemorandum of Appeal dated 05.04.2024 (from Eldoret CMELC No. E095 of 2022)· [2025] KEELC 4620 (KLR)

Chepngok v Metto & another (Suing as the Administrators of the Late Elizabeth Jepchonge Sirma) (Environment and Land Appeal E014 of 2024) [2025] KEELC 4620 (KLR)

Environment and Land Court
19 June 2025
4,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret Land Court cancelled a title obtained through an ex-parte judgment because the plaintiff never properly served court summons on the property owner.

What this practically means

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Executive summary

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The appellant, registered owner of L.R. No. Eldoret Municipality/Block 14/593 since June 2006, appealed against a magistrates' court ruling of 25 March 2024 dismissing her application dated 8 December 2023 seeking to set aside an ex-parte judgment and decree of 23 August 2022 in Eldoret CMELC No. E095 of 2022, in which the respondents obtained an order cancelling her title and registering themselves as owners. The ELC, sitting as a first appellate court, framed seven issues. It held the trial court retained jurisdiction to entertain the setting-aside application notwithstanding the judgment. On service, it found no valid summons were ever extracted or served: the process server's affidavit lacked the required certificate, did not allege service of summons, and failed the requirements of personal and substituted service under Order 5. Relying on Order 5 Rules 1(2) and 1(6), the court held the plaint abated 30 days after filing, depriving the trial court of jurisdiction and rendering the ex-parte proceedings, judgment and decree a nullity ab initio. Stay of execution and leave to defend were refused as overtaken by events. The court set aside the ex-parte judgment and the ruling of 25 March 2024, directed the County Land Registrar, Uasin Gishu to rectify the register and restore the appellant as owner, ordered surrender of the cancelled title deed, and awarded the appellant costs of both the application and the appeal, payable by the respondents jointly and severally.

Key legal issues

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01

Jurisdiction of the trial court to entertain an application to set aside ex-parte judgment after judgment was entered

Holding

The trial court had jurisdiction to hear and determine the application despite the judgment having been passed

Reasoning

The court noted the application invoked Orders 5, 7, 10, 21, 22 and 36 of the Civil Procedure Rules and constitutional fair-hearing guarantees. It held that a court does not cease to have jurisdiction merely because judgment has been passed, though it may become functus officio. The application raised new issues challenging the ex-parte judgment, so the trial court retained jurisdiction to entertain it.

p. 6
02

Whether there was proper service of summons to enter appearance

Holding

There was no proper service; no summons were extracted, the process server lacked a certificate, and the affidavit of service failed Order 5 requirements

Reasoning

The court scrutinised the affidavit of service of Morris Atila and found: no process server's certificate under Order 5 Rule 5; no summons on the court file; only the Plaint and Application alleged to have been served; no personal service per Order 5 Rule 8(1); and no description of the person served for substituted service under Order 5 Rule 12. Accordingly there was no evidence of service on the appellant or her agent.

p. 7
03

Legality of the ex-parte proceedings and judgment of 23.08.2022

Holding

The proceedings, judgment and decree were a nullity because summons were never extracted and served, so the suit abated and the court lacked jurisdiction

Reasoning

Order 5 Rule 1(2) and 1(6) require summons to be prepared, endorsed and served within 30 days, failing which the suit abates automatically. Relying on Royal Media Services Ltd v Ominde and Firenze Investment Limited v Kenya Way Limited, the court held that failure to extract and serve summons deprived the trial court of jurisdiction, rendering the ex-parte judgment and decree of 23.08.2022 a nullity from the very beginning.

p. 9
04

Whether the appellant was entitled to the prayers in the application dated 08.12.2023

Holding

Partially: the judgment and decree were set aside, but stay of execution and leave to defend were refused as overtaken by events

Reasoning

The stay of execution was overtaken by events since the respondents had already obtained a Certificate of Lease on 22.06.2023 and enforced the decree. Setting aside was granted because the judgment was a nullity. However, leave to defend was refused because the plaint had abated under Order 5 Rule 1(2) read with 1(6), leaving nothing to defend.

p. 9
05

Whether the appellate court should interfere with the trial ruling dated 25.03.2024

Holding

Yes; the trial court misdirected itself on the facts and law and arrived at a wrong determination, warranting interference

Reasoning

Given its findings that the underlying judgment and decree were a nullity and devoid of jurisdiction, the court held that the trial court handling the application dated 08.12.2023 misdirected itself on the facts and the applicable law and reached a wrong determination in its ruling, so the appellate court was bound to interfere and set the ruling aside.

p. 10

Legal principles established

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  • Where summons to enter appearance are not extracted and served within the prescribed period, the suit abates and any ex-parte judgment entered is a nullity
  • Service of a valid summons to enter appearance is what properly invokes the court's jurisdiction over a defendant
  • A first appellate court must re-evaluate the evidence before the trial court and arrive at its own independent judgment

Court orders

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  1. 1.The Memorandum of Appeal dated 05.04.2024 is merited
  2. 2.The plaint dated 10th June 2022 in Eldoret CMELC No. E095 of 2022 deemed abated on 11th July 2022 for failure to comply with Order 5 Rule 1(2) as read with Order 5 Rule 1(6) of the Civil Procedure Rules, 2010
  3. 3.The proceedings and ex-parte judgment pronounced on 23rd August 2022 in Eldoret CMELC No. E095 of 2022 declared a nullity and set aside forthwith
  4. 4.The ruling and decree issued on 25th March 2024 in Eldoret CMELC No. E095 of 2022 set aside forthwith
  5. 5.The County Land Registrar, Uasin Gishu directed to rectify the register/green card of L.R. No. Eldoret Municipality Block 14/593 by removing the respondents' names and restoring the appellant as lawful owner as per the entry made on 7th June 2006, within 14 days
  6. 6.The respondents ordered to surrender back the cancelled title deed issued on 23rd August 2023 within 14 days
  7. 7.Appellant awarded costs of the application dated 8th December 2023 and of the appeal, payable by the respondents jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40, 47, 50, 159
  • Civil Procedure Rules, 2010Order 5 Rule 1, 1(2), 1(3), 1(5), 1(6), Rule 5(a)/(b), Rule 8(1), Rule 12, Rule 15; Order 7; Order 10; Order 21; Order 22; Order 36; Section 3A
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Royal Media Services Ltd v Ominde & Another
    Civil Appeal E.1195 of 2023 [2024] KEHC 9124 (KLR)
  • Francis Ndegwa Muhoro v Ahmednassir M. Abdullahi
    [2019] eKLR
  • Firenze Investment Limited v Kenya Way Limited
    [2001] eKLR
  • Uday Kumar Chandullal Rajani & others T/A Lit Petrol Station v Charles Thaithi
    CA 85/96 (UR)
On appeal from
Eldoret Magistrates' Court (ELC)
Eldoret CMELC No. E095 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial court ruling; appeal against dismissal of application dated 08.12.2023 to set aside ex-parte 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, "Chepngok v Metto & another (Suing as the Administrators of the Late Elizabeth Jepchonge Sirma) (Environment and Land Appeal E014 of 2024) [2025] KEELC 4620 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 05.04.2024 (from Eldoret CMELC No. E095 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4620/eng@2025-06-19

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