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ELCAllowedNot stated in the judgment· [2025] KEELC 6326 (KLR)

Siminkor v Osiray (Environment and Land Case 136 of 2018) [2025] KEELC 6326 (KLR)

Environment and Land Court
24 September 2025
1,763 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 four-year-old ex parte judgment, confirming mistakes by advocates shouldn't cost a party their day in court.

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 Kajiado (M.D. Mwangi, J) on a Notice of Motion dated 24th February 2025 by the Defendant under Order 10 Rule 11 of the Civil Procedure Rules. The Defendant sought leave for new advocates to come on record, an interim injunction, setting aside of the ex parte judgment of 8th February 2021 (which had decreed cancellation of his titles over Kajiado/Kaputiei-South/1024, 1116 and 1312 and reversion to the Plaintiff after formal proof on pleaded fraud), and enlargement of time to file a defence. The Plaintiff opposed, asserting the decree was executed, the judgment was regular and the defence raised no triable issues. The court framed one issue: whether the ex parte judgment should be set aside. Applying Order 10 Rule 11 and authorities including CMC Holdings v Nzioki, Chemwolo v Kubende, Tree Shade Motors and Isaac Awuondo, the court held the discretion to be unfettered but judicial; the Defendant's default arose from his advocate's inadvertence, an excusable mistake, and the draft defence - denying fraud, annexing sale agreements and clearance letters from investigative authorities - raised triable issues. Excluding the Defendant would breach Article 50(1); the Plaintiff's prejudice was compensable by costs. The court allowed the application, set aside the ex parte judgment and consequential orders, granted fourteen days to file a defence, imposed a mutual preservation order over the suit properties, and ordered costs in the cause.

Key legal issues

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01

Whether the ex parte judgment of 8th February 2021 should be set aside under Order 10 Rule 11

Holding

Set aside, because the Defendant's explanation (advocate's inadvertence) was excusable and the draft defence raises triable issues on the alleged fraud.

Reasoning

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.

p. 4
02

Whether an interlocutory injunction/preservation order should issue

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The ex parte judgment entered on 8th February 2021, together with all consequential orders, set aside
  3. 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. 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. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (5)

  • Odwesso v Nyaga alias Jason Nyaga
    Civil Appeal E031 of 2020 [2024] KEHC 9123 (KLR)
  • CMC Holdings Limited v James Mumo Nzioki
    [2004] eKLR
  • Tree Shade Motors Ltd v D.T. Dobie & Co. (K) Ltd & Another
    [1995–1998] 1 EA 324
  • Philip Keipto Chemwolo & Another v Augustine Kubende
    [1986] eKLR
  • Isaac Awuondo v Surgipharm Limited & Another
    [2011] eKLR
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

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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, "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.