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ELCPartially AllowedNot stated in the judgment (Originating Summons filed 3rd May 2021)· [2025] KEELC 6860 (KLR)

Moseti v Chacha (Sued as Legal Representative of the Estate of the late Sigismundis Sarara Marwa (Deceased) & another (Enviromental and Land Originating Summons E018 of 2021) [2025] KEELC 6860 (KLR)

Environment and Land Court
21 July 2025
1,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court reinstated a landowner's case after an ex parte judgment, ruling that honest mistakes can be cured by paying costs, not losing a hearing.

What this practically means

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Executive summary

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This is a first-instance ruling of the Environment and Land Court at Nairobi, delivered by Mohammed N. Kullow, J, on 21st July 2025, on the Plaintiff/Applicant's Notice of Motion dated 26th May 2023. The Applicant sought setting aside of ex parte proceedings of 19th January 2023 and the judgment dated 10th May 2023, reinstatement of the originating summons (instituted 3rd May 2021) for hearing on the merits, and stay of execution, under Order 12 Rule 7 and Order 42 Rule 6(2) of the Civil Procedure Rules and Sections 13, 18 and 19 of the Environment and Land Court Act. He attributed non-attendance to counsel's inadvertent failure to open an email containing the hearing notice, citing his occupation of and investment in the suit land since 1999. The Respondents opposed, relying on multiple email and physical services, delivery receipts and the Applicant's indolence since 2021, invoking the principle that equity aids the vigilant and citing Savings & Loan Ltd v Susan Wanjiru Muiru. Framing two issues - sufficient cause, and consequential orders - the court applied Shah v Mbogo and Philip Chemwolo v Augustine Kubende, holding that inadvertence, an arguable case, absence of irremediable prejudice and the Respondents' concession on throw-away costs favoured setting aside on protective terms, notwithstanding indicia of delay. The court vacated the ex parte proceedings and judgment, directed the Applicant to set down the suit for hearing within 45 days, and awarded throw-away costs of KShs. 50,000 to the Defendant/Respondent.

Key legal issues

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01

Whether sufficient cause was shown to set aside the ex parte proceedings and judgment under Order 12 Rule 7

Holding

Yes. The non-appearance was inadvertent, not deliberate; the Applicant has an arguable interest in the suit land; and the Respondents showed no irremediable prejudice, so discretion favoured setting aside on terms.

Reasoning

Applying Shah v Mbogo, the court weighed the explanation for non-attendance against prejudice to the Respondents. Counsel's failure to open the hearing notice email was inadvertent. Although indicia of delay existed, delay alone is not an absolute bar with a credible explanation. The Respondents' prejudice could be met by throw-away costs, and they offered to accept throw-away costs.

p. 4
02

Whether an advocate's omission should be visited on the client

Holding

A litigant has a duty to follow up the progress of the case, so an advocate's omission may in some circumstances be visited on the client; but this does not oust the court's discretion where justice favours a hearing on the merits.

Reasoning

The court accepted the principle from Savings & Loan Ltd v Susan Wanjiru Muiru that a case belongs to the litigant, and noted indicia of the Applicant's indolence since 2021. However, per Philip Chemwolo, mistakes need not attract the penalty of losing a hearing unless there is fraud or intent to overreach, and defaults can be cured by costs.

p. 3

Legal principles established

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  • The discretion to set aside ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction, and must be exercised judiciously on the facts of each case.
  • A litigant bears a duty to pursue the prosecution of his or her case and cannot wholly hide behind an advocate's omissions.
  • Delay alone is not an absolute bar to setting aside a judgment where a cogent explanation is offered and the balance of justice favours a hearing on the merits.

Court orders

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  1. 1.Vacating and setting aside the ex parte proceedings of 19th January 2023 and the judgment dated 10th May 2023
  2. 2.The Plaintiff/Applicant shall set down the suit for hearing within 45 days from the date of the judgment
  3. 3.The Plaintiff/Applicant shall pay the Defendant/Respondent KShs. 50,000 as throw-away costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Environment and Land Court ActSection 13
  • Environment and Land Court ActSection 18
  • Environment and Land Court ActSection 19

Cases cited (4)

  • Shah v Mbogo
    [1967] EA 166
  • Savings & Loan Ltd v Susan Wanjiru Muiru
    Nairobi [Milimani] HCCC No. 397 of 2002
  • Et Monks & Company Ltd v Evans
    [1985] KLR
  • Philip Chemwolo & Another v Augustine Kubende
    [1982-88] KAR 103
Jurisdiction invoked
Sections 13, 18 and 19 of the Environment and Land Court Act; Order 12 Rule 7 and Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Moseti v Chacha (Sued as Legal Representative of the Estate of the late Sigismundis Sarara Marwa (Deceased) & another (Enviromental and Land Originating Summons E018 of 2021) [2025] KEELC 6860 (KLR)", Case Analysis (2025). Not stated in the judgment (Originating Summons filed 3rd May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6860/eng@2025-07-21

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