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ELCPartially AllowedELC Suit No. 1257 of 2016· [2025] KEELC 4976 (KLR)

Chege & another v Kibui (Environment & Land Case 1257 of 2016) [2025] KEELC 4976 (KLR)

Environment and Land Court
3 July 2025
6,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a three-year-old judgment after advocates bungled a landowner's defence, restarting the case from scratch.

What this practically means

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Executive summary

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By a Notice of Motion dated 4th April 2025 under Article 50 of the Constitution, Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the Defendant sought leave to enter appearance through advocates of his choice, striking out of execution proceedings, setting aside of the judgment delivered on 12th May 2022 and its decree, and striking out of the preceding proceedings. He asserted he was never served with summons, never instructed Wangui Kuria & Co. Advocates or the purported firm of Ntoiti Kirui & Co. Advocates, and only learned of the matter when auctioneers sought to evict him. The Law Society of Kenya confirmed no advocates practice as Ntoiti Kirui & Co. Advocates, and that firm's contact number matched Wangui Kuria's. The Plaintiffs opposed, citing the Defendant's repeated non-appearance, the three-year delay, and proof that his then advocates filed a Defence, witness statement and list of documents. The court framed two issues: whether to set aside the 12th May 2022 judgment and subsequent orders, and whether to strike out the preceding proceedings. It held service on the Defendant through his mother, with whom he lived, was lawful; that Wangui Kuria & Co. Advocates had express or implied instructions; but that the withdrawal from acting and the change of advocates were procedurally irregular, and the advocates breached their fiduciary duty, bungling the Defendant's suit at no fault of his own. Weighing the resulting injustice against the Plaintiff's prejudice from the delay, the court allowed the application, set aside the judgment and decree, struck out the preceding proceedings, and ordered each party to bear its own costs. It also advised the Defendant to lodge professional misconduct complaints against Advocates Wangui Kuria and Abigail Giathi before the Advocates Disciplinary Tribunal.

Key legal issues

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01

Validity of service of summons on the Defendant's mother

Holding

Service was lawfully effected on the Defendant through his mother, with whom he lived, even though no failed attempts at personal service were pleaded or proved.

Reasoning

The court noted the Plaintiff gave no evidence of failed attempts at personal service as Order 5 Rule 12 requires, but held that since the Defendant and his mother both deponed that they lived on the suit property, the summons received by the mother were effectively received for the Defendant. The court declined to adjudicate signature comparison without expert evidence.

p. 9
02

Whether Wangui Kuria & Co. Advocates had instructions to act for the Defendant

Holding

The firm had either express or implied instructions, having acted for the Defendant in the related magistrates' court suit over the same property at the same time.

Reasoning

Although the Defendant denied instructing the firm in this suit, he admitted the same firm acted for him in CMCC No. 2330 of 2016 concerning the same property, filed around the same time. Applying the general retainer principle, the court inferred express or implied instructions, and the firm filed a Notice of Appointment and a Defence.

p. 10
03

Irregular change of advocates and conduct of Wangui Kuria & Co. Advocates and the purported firm of Ntoiti Kirui & Co. Advocates

Holding

The change of advocates was procedurally irregular, the firm of Ntoiti Kirui & Co. Advocates is of questionable existence, and Wangui Kuria & Co. Advocates breached their fiduciary duty.

Reasoning

No application to cease acting under Order 9 Rule 13 was filed, and no Notice of Change of Advocates under Order 9 Rule 6 was ever filed. The LSK confirmed no advocates practice as Ntoiti Kirui & Co. Advocates, and that firm's letterhead and phone number matched Wangui Kuria's. The court found the advocates acted contrary to professional duty and suggested a complaint to the Advocates Disciplinary Tribunal.

p. 11
04

Whether the judgment of 12th May 2022 should be set aside despite the three-year delay

Holding

The judgment was set aside because the Defendant's case was closed and decided without being heard due to his advocates' bungling, for which he bore no fault.

Reasoning

Applying the Shah v Mbogo and related discretion principles, the court weighed the injustice of upholding a judgment entered without hearing the Defendant's case against the Plaintiff's prejudice from a three-year-old judgment. It concluded the injustice from the advocates' unprofessional conduct outweighed the Plaintiff's prejudice.

p. 12

Legal principles established

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  • The discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, not to assist a party who deliberately obstructed or delayed the cause of justice.
  • Advocates can only act in a matter where they have been instructed expressly or by implication, and the onus of proving lack of instructions is on the person alleging it.
  • Service may only be effected on an adult member of the Defendant's family after a reasonable number of failed attempts to serve the Defendant personally.

Court orders

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  1. 1.Judgment delivered on the 12th May 2022 and the subsequent decree orders granted to the Plaintifi are hereby set aside.
  2. 2.The proceedings leading to the impugned judgment dated 12th May 2022 be and is hereby struck out.
  3. 3.Each party to bear its own costs.
Jurisdiction invoked
Article 50 of the Constitution, Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Chege & another v Kibui (Environment & Land Case 1257 of 2016) [2025] KEELC 4976 (KLR)", Case Analysis (2025). ELC Suit No. 1257 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4976/eng@2025-07-03

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