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ELCPartially AllowedSiakago MC ELC Case No. E014 of 2022 (appeal therefrom)· [2025] KEELC 6009 (KLR)

Njue v Opiyo (Environment and Land Appeal E025 of 2024) [2025] KEELC 6009 (KLR)

Environment and Land Court
11 September 2025
1,036 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 land eviction judgment after finding the defendant was never properly served, sending the case back for a full hearing.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court (K. Bor, J) against the ruling of Hon Njoki Kahara, Principal Magistrate, delivered on 12/6/2024 in Siakago MC ELC Case No. E014 of 2022, dismissing the Appellant's application to set aside an ex parte judgment and stay execution in an eviction suit over parcel Makaima/Adjudication/475. The Respondent had sued for eviction; interlocutory judgment was entered on 23/8/2023, formal proof heard on 19/9/2023, and ex parte judgment delivered on 25/10/2023. The Appellant complained that he was never properly served, that his draft defence raised triable issues, and that the magistrate failed to exercise discretion judiciously. Examining the affidavits of service, the court found they cited two different residences for the Appellant (Kanyonga village and Ngecha village), casting serious doubt on service. Guided by Shah v Mbogo and CMC Holdings Ltd v Nzioki, the court held that the discretion to set aside ex parte judgment exists to avoid injustice, and was satisfied the Appellant was never served with summons or pleadings. The appeal was allowed: the ruling of 12/6/2023, the interlocutory judgment and the ex parte judgment were all set aside. The matter was remitted to the trial court for hearing on merit, with directions for fresh service within 7 days and filing of defence within 14 days, and status quo on the land to be maintained. Costs of the appeal were awarded to the Respondent.

Key legal issues

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01

Whether the Appellant was properly served with summons and pleadings

Holding

The trial court should have scrutinised the affidavits of service; their discrepancies showed the Appellant was not served

Reasoning

The affidavits of service gave two different residences for the Appellant (Kanyonga village and Ngecha village), raising serious doubts as to whether summons to enter appearance and the pleadings were served. Had the trial court scrutinised them it would have noted the discrepancies. The court was satisfied there was no proper service, meaning the ex parte judgment was entered without a valid foundation of service.

p. 2
02

Whether the trial court exercised its discretion judiciously in dismissing the application to set aside the ex parte judgment

Holding

The trial court failed to exercise its discretion judiciously; the setting-aside discretion exists to avoid injustice

Reasoning

Relying on Shah v Mbogo and CMC Holdings Ltd v Nzioki, the court reiterated that the discretion to set aside ex parte judgment must be exercised judiciously and upon reasons, to ensure a litigant does not suffer injustice from excusable mistake. Where service itself is in doubt, denying a hearing deprives a litigant of the right to be heard, and the discretion was wrongly exercised.

p. 2

Legal principles established

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  • The discretion to set aside ex parte judgment is meant to avoid injustice or hardship, not to assist deliberate delay or obstruction
  • Discrepancies in affidavits of service as to the place of service cast doubt on the propriety of service

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the Learned Magistrate delivered on 12/6/2023 is set aside together with the interlocutory judgment entered on 23/8/2023 and the ex parte judgment delivered on 25/10/2023
  3. 3.The matter is remitted back to the trial court for hearing and determination on merit
  4. 4.The Respondent to serve the plaint and all other documents upon the Appellant within 7 days of the date of the judgment
  5. 5.The Appellant to file and serve his defence and pleadings within 14 days of service of the plaint
  6. 6.The status quo on the land to be maintained pending hearing and determination of the suit
  7. 7.The Respondent is awarded the costs of the appeal

Authorities

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Cases cited (2)

  • Shah v Mbogo & Anor
    (1967) EA 116
  • CMC Holdings Ltd v Nzioki
    [2004] KLR 173
On appeal from
Principal Magistrate's Court, Siakago
Siakago MC ELC Case No. E014 of 2022
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over the ruling of the Principal Magistrate in Siakago MC ELC Case No. E014 of 2022

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, "Njue v Opiyo (Environment and Land Appeal E025 of 2024) [2025] KEELC 6009 (KLR)", Case Analysis (2025). Siakago MC ELC Case No. E014 of 2022 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6009/eng@2025-09-11

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