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ELCPartially AllowedEnvironment and Land Appeal E021 of 2023· [2025] KEELC 5206 (KLR)

Mainye v Nyagaka (Environment and Land Appeal E021 of 2023) [2025] KEELC 5206 (KLR)

Environment and Land Court
9 July 2025
MSMunyao Sila
2,637 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 an ex parte judgment, ruling that a litigant should not lose their day in court because their lawyer forgot a hearing date.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Kisii against a ruling of the trial Magistrate dismissing an application by the appellant to set aside ex parte proceedings. The underlying suit, filed in December 2020 by the 1st respondent, claimed purchase of land parcel West Kitutu/Bomatara/1413 and sought eviction and a permanent injunction against the appellant, who by defence and counterclaim asserted continuous occupation since 2003 and title by adverse possession. On 8 August 2023 the matter proceeded ex parte in the absence of the appellant and her counsel, who admitted he was served but forgot to diarise the hearing. Judgment was scheduled for, and delivered by email on, 31 August 2023. The appellant's application dated 14 August 2023 under Order 12 Rule 7, filed before judgment but not placed before any court until after it, was dismissed by the trial Magistrate on 28 November 2023 as overtaken by events. The appellant appealed on grounds including condemnation unheard and punishment for counsel's mistake. Munyao Sila J allowed the appeal, holding that the application, filed before judgment and clearly seeking to be heard, could not fairly be dismissed as overtaken by events; doing so was over-reliance on technicality contrary to Article 159(2)(d). Counsel's inadvertence, owned up to and remediable by costs, should not prejudice the client. The court set aside the trial court's ruling, the ex parte proceedings of 8 August 2023 and the ex parte judgment of 31 August 2023, subject to thrown away costs of Kshs. 15,000/= payable within 14 days, failing which the ex parte judgment stands. If paid, the suit is reinstated to be heard by a Magistrate other than Hon. Abuya. The judge also criticised delivery of judgments by email in the absence of parties. Each party was to bear their own costs of the appeal.

Key legal issues

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01

Effect of filing a set-aside application before judgment was delivered but heard after

Holding

The application, though lacking a prayer to set aside the judgment, plainly sought to have the ex parte proceedings reopened, and dismissing it as overtaken by events was an over-reliance on technicality contrary to Article 159(2)(d)

Reasoning

The application was filed on 14 August 2023 and was on the court file before judgment on 31 August 2023. Because there was no oral inter partes appearance, counsel could not amend or make an oral application. The substance was a wish to be heard, and Order 12 Rule 7 empowers the court to set aside ex parte judgments on just terms. The trial court's technical approach defeated substantive justice.

p. 3
02

Counsel's inadvertence as ground for setting aside ex parte proceedings

Holding

The appellant made out a good case that non-attendance was due to counsel's error, which he owned up to and offered to compensate; the error was curable by costs rather than by condemning the client unheard

Reasoning

Counsel deponed that he was served with the hearing notice but forgot to diarise it or inform his client. He accepted responsibility and offered to pay costs. The only loss to the 1st respondent was the expense of bringing counsel and witnesses back, remediable by thrown away costs. Weighed against the appellant's right to be heard on her defence and counterclaim, justice favoured a hearing on the merits.

p. 4
03

Delivery of judgments and rulings by email in absence of parties

Holding

The court expressed disapproval of email delivery of decisions without parties present, as it denies them the chance to raise important matters, arrest judgment, or make immediate post-judgment applications

Reasoning

The judge noted email delivery can lead to injustice: parties cannot alert the court to settlements, pending applications, or seek informal stay under Order 42 Rule 6(3), and emails may go astray. He recommended delivery in the presence of parties with the text subsequently emailed, so rights are preserved.

p. 5

Legal principles established

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  • An application under Order 12 Rule 7 seeking to set aside ex parte proceedings, filed before judgment but not considered by the court, should not be dismissed as overtaken by events where the applicant's intention to be heard is clear
  • A party should ordinarily not be punished for the mistake of counsel where the mistake can be remedied by an award of costs
  • Judgments and rulings ought to be delivered in the presence of the parties, with the text subsequently emailed, to preserve their rights

Court orders

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  1. 1.Set aside the ruling of the trial court of 28 November 2023
  2. 2.Set aside the ex parte proceedings of 8 August 2023
  3. 3.Set aside the ex parte judgment delivered via email on 31 August 2023
  4. 4.Assessed thrown away costs at Kshs. 15,000/=, payable within 14 days; in default the ex parte proceedings and judgment will stand
  5. 5.If payment is made, the suit to be reinstated and heard by any other Magistrate apart from Hon. Abuya
  6. 6.Each party to bear his/her own costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 42 Rule 6(3)
  • Constitution of Kenya, 2010Article 159(2)(d)
On appeal from
Chief Magistrate's Court (trial court, Hon. S.N Abuya, Chief Magistrate)
Not stated in the judgment
Jurisdiction invoked
First appeal to the Environment and Land Court against a ruling of the magistrates' court (the judgment does not cite a specific enabling provision)

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, "Mainye v Nyagaka (Environment and Land Appeal E021 of 2023) [2025] KEELC 5206 (KLR)", Case Analysis (2025). Environment and Land Appeal E021 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5206/eng@2025-07-09

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