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ELCPartially AllowedNot stated in the extract (Originating Summons filed 17th March 2015)· [2025] KEELC 4727 (KLR)

Khamis & another v Mwarome (Sued as the Administrator of the Estate of Masha Dena Kideswe) (Enviromental and Land Originating Summons 41 of 2015) [2025] KEELC 4727 (KLR)

Environment and Land Court

17 June 2025

MNMwangi Njoroge

2,036 words in judgment

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Executive summary

This Environment and Land Court decision at Malindi, delivered by Mwangi Njoroge J on 17th June 2025, determined two applications arising from an Originating Summons filed on 17th March 2015 by plaintiffs who claimed they purchased suit land (Kilifi/Roka/750) from the late Masha Dena Kideshwe by an agreement dated 27th June 1983. Ex parte judgment was entered for the plaintiffs on 16th July 2021, and the Deputy Registrar subsequently pursued registration of the land in the first plaintiff's name, including gazettement in June 2022 and a title deed issued in February 2023. The defendant, Sylvester Chibo Mwarome, administrator of the deceased's estate and resident in Germany since 2001, applied by Notice of Motion dated 23rd January 2025 under Order 22 Rule 17 and Sections 1A, 1B and 3A of the Civil Procedure Act for stay of execution of the decree, setting aside of the ex parte judgment, and leave to file his defence out of time. He contended there was no sale, no personal service, and that the plaintiffs fraudulently obtained the deceased's fingerprints. The court reviewed the record: substituted service through the German Embassy was attempted, service by registered post was effected with postal receipts, and the defendant's German advocate acknowledged receipt of summons by letter dated 16th May 2016. The court held service was proper, that no procedural step was skipped, and that the defendant could not elect to attend to the suit at his own pleasure. The defendant's application was dismissed with costs, while the plaintiffs' application dated 26th August 2024 was allowed in terms of prayers (1) and (2), the contents of which are not reproduced in the extract.

Key legal issues

Regularity of ex parte proceedings and service

Holding

Service was proper; the ex parte judgment stands

Reasoning

The court traced the record: substituted service via the German Embassy was ordered and attempted, registered post service was effected with postal receipts, and the defendant's own advocate abroad acknowledged receipt of summons by a letter dated 16th May 2016. The court held that once summons reached the defendant and were acknowledged, it was for him to file appearance and defence, and litigation cannot proceed at a party's own pleasure.

p. 4

Setting aside ex parte judgment and stay of execution

Holding

Refused; the application had no merit

Reasoning

Having found valid service and that every procedural step was properly taken, the court concluded there was no irregularity in the ex parte judgment or the subsequent execution, including gazettement and registration of the suit land in the first plaintiff's name by the Deputy Registrar.

p. 4

Legal principles established

Service of process on a defendant abroad by registered post as ordered by the court is proper service where the defendant acknowledges receipt through an advocate

Court orders

1.The defendant's Notice of Motion dated 23rd January 2025 is dismissed
2.The application dated 26th August 2024 is allowed in terms of prayers number (1) and (2) thereof
3.Costs of the dismissed application to the plaintiffs

Authorities

Legislation

Civil Procedure Rules 2010Order 22 Rule 17
Civil Procedure ActSections 1A, 1B and 3A

Jurisdiction invoked: Order 22 Rule 17 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); original jurisdiction of the ELC

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Cite this brief

Caselaw, "Khamis & another v Mwarome (Sued as the Administrator of the Estate of Masha Dena Kideswe) (Enviromental and Land Originating Summons 41 of 2015) [2025] KEELC 4727 (KLR)", Case Analysis (2025). Not stated in the extract (Originating Summons filed 17th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4727/eng@2025-06-17

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