Mutai (Suing as the Administrator of the Estate of the Late Joseph Kiptum Bitok) v Chelulei (Environment and Land Case E007 of 2023) [2025] KEELC 6631 (KLR)
The bottom line
#An Eldoret land court refused to reverse orders against a defendant who ignored court summons, confirming that court orders must be obeyed until formally set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's right to be heard was violated
No. On the injunction application the Defendant was served twice with the plaint, summons and hearing notice but never filed a response before the ruling; on the contempt application his replying affidavit and submissions were duly considered.
The court traced the record: two affidavits of service by process server Enock Kimutai Bett, the Defendant's counsel's concession on 3rd March 2025 that no response was filed, and Justice Obaga's ruling of 8th May 2024 expressly noting and considering the Defendant's replying affidavit dated 29th January 2024. The right to be heard requires only a reasonable opportunity, which the Defendant failed to utilise on the first application and fully received on the second.
Whether there was an error apparent on the face of the record justifying review
No. The fact that the suit land was registered in the name of the Defendant's late father was before the court from the outset and was considered; its omission from the rulings cannot constitute an error.
Relying on National Bank of Kenya v Ndungu Njau, the court held an error on the face of the record must be self-evident and require no elaborate argument. The Plaintiff had pleaded the registered ownership of Lulei Rono from the plaint and the 13th February 2023 application, and the court was seized of that fact when issuing the injunction. The Defendant's allegation that the court overlooked ownership was found false and misleading.
Whether sufficient cause was established for review or setting aside
No. The Defendant's claim of ignorance of the application until 27th March 2023 contradicted his counsel's admission that non-filing was due to an oversight by the transitioning firm of Magare Musundi & Co. Advocates; the Defendant approached the court with unclean hands.
Citing Attorney General v Law Society of Kenya and Wachira Karani v Bildad Wachira, the court held sufficient cause must be rational, plausible and truthful and is a question of fact. The contradiction between the Defendant's sworn claim of late awareness and counsel's oral admission of an oversight demonstrated dishonesty and that the Defendant had instructed counsel well before the order was made, negating sufficient cause.
Whether the ex-parte orders should be set aside under Order 12 Rule 7 and Order 51 Rule 15
No. The orders were regular because they were made in default of appearance despite proper service; irregular ex-parte orders alone are set aside ex debito justitiae.
Applying Richard Nchapi Leiyagu v IEBC, the court held the discretion to set aside ex-parte orders exists to avoid injustice from accident, inadvertence or mistake, not to assist a person who deliberately obstructs justice. The Defendant was served personally, did not attend the hearing, and gave no sufficient reason for non-attendance, so the orders were regular and would not be disturbed.
Whether the application dated 13th February 2023 should be re-opened
No. The ruling and orders were regular, no substantial reason was given, and re-opening would serve no useful purpose and risk prejudicing the Plaintiff.
The court reaffirmed its discretion to allow re-opening must be exercised judiciously and without embarrassing or prejudicing the opposite party. Having found the Defendant was afforded sufficient opportunity to be heard and failed to take it, and the ruling being well-reasoned and regular, no useful purpose would be served by re-opening the application for hearing on merit.
Legal principles established
#- The right to be heard requires only that a party be afforded a reasonable opportunity to present their case; a party who fails to utilise that opportunity cannot later claim violation of the right
- A review cannot be used to invite the court to re-hear the matter or correct an erroneous view previously taken; grounds under Order 45 Rule 1 must be strictly established
- An ex-parte order made in default of appearance despite proper service is regular, and the burden lies on the defaulting party to show sufficient cause for non-attendance
- Court orders, whether ex-parte or inter-partes, must be obeyed until discharged, even where the affected party believes them irregular or void
- Costs follow the event unless the court, for good reason under the proviso to Section 27 of the Civil Procedure Act, departs from that rule
Court orders
#- 1.The Defendant/Applicant's Notice of Motion dated 12th June, 2024 is dismissed
- 2.Costs of the Application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 80 and 27 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutai (Suing as the Administrator of the Estate of the Late Joseph Kiptum Bitok) v Chelulei (Environment and Land Case E007 of 2023) [2025] KEELC 6631 (KLR)", Case Analysis (2025). ELC Case No. E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6631/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.