Siminkor v Osiray (Environment and Land Case 136 of 2018) [2025] KEELC 6326 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a four-year-old ex parte judgment, confirming mistakes by advocates shouldn't cost a party their day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment of 8th February 2021 should be set aside under Order 10 Rule 11
Set aside, because the Defendant's explanation (advocate's inadvertence) was excusable and the draft defence raises triable issues on the alleged fraud.
The court exercised its discretion under Order 10 Rule 11. The Defendant's advocate entered appearance but failed to file a defence through inadvertence, an excusable mistake per Chemwolo v Kubende. The draft defence denied fraud, annexed sale agreements and letters from investigative authorities clearing the Defendant, directly challenging the formal-proof evidence and raising triable issues. Denying a hearing would breach Article 50(1); the Plaintiff's prejudice is compensable by costs.
Whether an interlocutory injunction/preservation order should issue
The court did not grant the injunction as prayed but issued a mutual preservation order barring either party from dealing with the suit properties pending determination of the suit.
Exercising its inherent jurisdiction for preservation of the suit property, the court restrained both parties rather than only the Plaintiff, preserving the status quo pending the full hearing now made possible by setting aside the ex parte judgment.
Legal principles established
#- The power under Order 10 Rule 11 is an unfettered discretion that must nonetheless be exercised judicially to do justice between the parties.
- In setting aside a regularly obtained judgment the court asks whether there is a reasonable explanation for the default and whether the proposed defence raises triable issues.
- A triable issue need not succeed at trial; it need only call for interrogation, and locking a party out of a hearing contravenes Article 50(1).
Court orders
#- 1.Leave granted to the law firm of Rutto & Company Advocates to come on record for the Defendant in place of the firm of Kipkenda & Company Advocates
- 2.The ex parte judgment entered on 8th February 2021, together with all consequential orders, set aside
- 3.Defendant/Applicant granted leave to file and serve his Statement of Defence within fourteen (14) days, upon payment of the requisite court fees
- 4.Either party barred from subdividing, selling, charging, transferring, or otherwise disposing the suit properties Kajiado/Kaputiei-South/1024, 1116 and 1312 pending hearing and determination of the suit
- 5.Costs of the application shall be in the cause
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules and the court's inherent jurisdiction; Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siminkor v Osiray (Environment and Land Case 136 of 2018) [2025] KEELC 6326 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6326/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.