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ELCDismissedNakuru-ELCC/121/2015 (Ruling)· [2025] KEELC 5057 (KLR)

Muigai v Ndimu Farmers Co-operative Society & 2 others (Environment and Land Case 121 of 2015) [2025] KEELC 5057 (KLR)

Environment and Land Court of Kenya
8 July 2025
2,256 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru land court refused to reopen a case or stop eviction, saying a litigant who ignored their own case cannot blame their lawyer.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) on the 2nd Defendant's Notice of Motion dated 13th January 2025 seeking stay of execution of the judgment delivered on 13th December 2024 and an order of review, variation or setting aside of that judgment to allow him to defend the suit. The Applicant, through counsel, deponed that he was not served with the judgment and only learnt of it on 30th December 2024 at the court registry, and that eviction from land he and his family had occupied for over 40 years would render them homeless and destroy their livelihood. The Plaintiff opposed the application as an abuse of process designed to deny him the fruits of a valid judgment. The court traced the history of the 2015 matter: the 2nd Defendant entered appearance and filed a defence through Simiyu & Co. Advocates; counsel was served with hearing notices and participated in the final proceedings where he stated he had lost touch with his client, whereupon defences were closed and judgment entered after ex parte hearing. The court held the Applicant could not claim ignorance of the judgment since his counsel on record received court communications including judgments uploaded on the CTS portal, and that counsel should have formally sought leave to cease acting. No grounds for review under Order 45 of the Civil Procedure Rules or Section 80 of the Civil Procedure Act - discovery of new matter, error apparent on the record, or sufficient reason - were advanced. On stay, applying Order 42 Rule 6 and Charles Wahome Gethi, the court found mere residence on the suit land insufficient to demonstrate substantial loss. The application was dismissed with costs on 8th July 2025.

Key legal issues

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01

Whether the judgment of 13th December 2024 should be reviewed, varied or set aside

Holding

The application failed because no grounds for review under Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act were advanced; counsel for the 2nd Defendant was on record and received court communication, so the Applicant was aware of proceedings.

Reasoning

The court traced the history of the 2015 suit, finding that the 2nd Defendant was served with summons, entered appearance through Simiyu & Co. Advocates, and filed a defence. Counsel participated in the last proceedings and indicated he had lost touch with the client, but should have sought leave to cease acting. Judgments and rulings are uploaded on the CTS portal to advocates' emails in real time, so the Applicant could not claim ignorance of the judgment.

02

Whether stay of execution should be granted under Order 42 Rule 6

Holding

Stay was refused because the Applicant did not demonstrate substantial loss or sufficient cause, nor offer security for due performance of the decree.

Reasoning

Relying on Order 42 Rule 6 and Charles Wahome Gethi v Angela Wairimu Gethi, the court held that it is not enough to say one resides on the suit land; the Applicant must show the substantial loss he stands to suffer. Although the Applicant claimed loss of livelihood and possible homelessness, he did not demonstrate the loss he would suffer if stay was not granted.

p. 5

Legal principles established

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  • An application for review will only be allowed on strong grounds, particularly where its effect would be to reopen the case afresh, and the applicant must demonstrate new evidence not obtainable with due diligence
  • Residence on suit land is not by itself proof of substantial loss for purposes of an order for stay of execution
  • A litigant cannot rely on the tired phrase of mistake of counsel; a case belongs to the client who must follow it up

Court orders

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  1. 1.The Applicant's Application dated 13th January 2025 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 79G
  • Civil Procedure Rules 2010Order 45
  • Civil Procedure Rules 2010Order 42 Rule 6

Cases cited (13)

  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Lazarus Bwire vs Uganda Electricity Transmission Company Limited
    (2015) eKLR
  • Gulf Fabricators Ltd vs Ali & Another
    (2017) eKLR
  • Jaber Mohsen Ali & Another vs Priscillah Boit & another
    E&L No 200 of 2012 [2014] eKLR
  • Vishram Ravji Halai vs Thronton & Turpin
    Civil Application No Nai 15 of 1990 [1990] KLR 365
  • Selestica Ltd vs Gold Rock Development Ltd
    (2015) eKLR
  • Republic vs Kenya Anti-Corruption Commission & 2 others
    [2009] eKLR
  • Itute Ingu vs Ismael Mwakavi Mwenda
    (1994) eKLR
  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others
    [2014] eKLR
  • Stanley Kahoro Mwangi & 2 others vs Kanyamwi Trading Company Limited
    (2015) eKLR
  • Evan Bwire V Andrew Aginda
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Charles Wahome Gethi vs. Angela Wairimu Gethi
    [2008] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; Order 45 of the Civil Procedure Rules 2010 and Section 80 of the Civil Procedure Act invoked for review; Order 42 Rule 6 for stay

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, "Muigai v Ndimu Farmers Co-operative Society & 2 others (Environment and Land Case 121 of 2015) [2025] KEELC 5057 (KLR)", Case Analysis (2025). Nakuru-ELCC/121/2015 (Ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5057/eng@2025-07-08

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