Njoronge v Maingi & another (Environment and Land Case E069 of 2024) [2025] KEELC 4700 (KLR)
The bottom line
#A Kenyan court set aside land orders made without proper service, confirming that ex parte orders collapse when proof of service is missing.
What this practically means
#Executive summary
#Key legal issues
#Whether service of the application dated 2nd September 2024 was proper
Service was improper because no evidence of the claimed email service on 20th September 2024 was adduced; consequently the orders of 17th October 2024 could not stand.
The process server's affidavit stated service was effected by email after unanswered calls, but no evidence of that email service was produced. The court accepted the applicant's claim of being served only a day before the mention date and seeing service after proceedings concluded, rendering service improper.
Whether the court should exercise its discretion to set aside the ex parte orders
The discretion was exercised in favour of setting aside the orders and directing the application to be heard afresh, since denying a litigant a hearing is a last resort.
Guided by Esther Wamaitha Njihia v Safaricom and Shah v Mbogo, the court held the discretion exists to avoid injustice from inadvertence or excusable mistake, and that improper service meant the proceedings of 17th October 2024 could not stand. A fresh hearing with both sides heard would do justice.
Legal principles established
#- Setting aside an ex parte order is discretionary and requires satisfaction that the respondent was not properly served or failed to appear for sufficient cause.
- The discretion to set aside is exercised to avoid injustice but not to assist a party who deliberately obstructed the course of justice.
Court orders
#- 1.That this Court be pleased to set aside the orders issued on the 17th October, 2024 on the Application dated 2nd September, 2024 be set aside.
- 2.That the Application dated 2nd September, 2024 be heard afresh with both parties being given a fair opportunity to present their cases upon granting leave to the 1st Defendant/Applicant herein leave to respond to the said Application.
- 3.Costs to be in the cause.
- Jurisdiction invoked
- Sections 1A & 1B of the Civil Procedure Act; Order 51 Rules 1 & 15 and Order 10 Rule 7 of the Civil Procedure Rules; Order 12 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoronge v Maingi & another (Environment and Land Case E069 of 2024) [2025] KEELC 4700 (KLR)", Case Analysis (2025). Application dated 10th December 2024; Notice of Motion arising in suit concerning Application dated 2nd September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4700/eng@2025-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.