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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 6942 (KLR)

Kirui v Kirui & 2 others; Hillary (Applying as the Legal Representative of the Estate of the Late Kiprop Arap Rono) (Proposed Interested Party) (Environment and Land Case E020 of 2021) [2025] KEELC 6942 (KLR)

Environment and Land Court
9 October 2025
7,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Narok court set aside a default land judgment and joined an estate's representative, but the defendant must pay Kshs. 30,000 promptly or lose that second chance.

What this practically means

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Executive summary

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Two applications were before the Environment and Land Court at Narok: a Notice of Motion dated 3rd October 2023 by the 1st Defendant, Samwel Kipkoech Rop, and another dated 3rd November 2023 by the Proposed Interested Party, Rono Kiprotich Hillary, as legal representative of the estate of Kiprop Arap Rono. Both sought stay of execution, setting aside of the judgment delivered on 26th September 2023, and a re-hearing of the suit as a defended suit; the Proposed Interested Party additionally sought joinder. The Plaintiff/Respondent opposed, contending that the 1st Defendant had been duly served. The court cross-examined the Process Server, Stephen K. Chebochok, who maintained that he personally served the 1st Defendant at his homestead on 27th November 2021, and the Defendant declined to sign on account of a succession claim over the land. The court held that service was effective and the judgment regular. Nevertheless, applying Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules and the principles in Shah v Mbogo, CMC Holdings v Nzioki, Murai v Wainaina and Sebei District Administrator v Gasyali, the court found the draft defence raised triable issues - alleging the Plaintiff was sold two acres but obtained 30 acres - the application was filed promptly, and the interest of justice favoured setting aside the regular judgment. Applying the Muruatetu principles, the court joined the Interested Party, who held a Limited Grant and demonstrated an identifiable stake as the estate alleged unprocedural excision of its land and a favourable Minister's decision. The court allowed both applications, set aside the judgment, joined the Interested Party, and ordered a re-hearing, with the 1st Defendant to file his Defence within 14 days and to pay throw away costs of Kshs. 30,000/= to the Plaintiff, failing which the orders would lapse and the earlier judgment reinstated.

Key legal issues

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01

Whether the 1st Defendant was effectively served with Summons to Enter Appearance

Holding

The court found that the 1st Defendant was duly served and the judgment entered was regular

Reasoning

The Process Server Stephen K. Chebochok was cross-examined and gave a consistent account of effecting personal service at the 1st Defendant's homestead on 27th November 2021, with the Defendant declining to sign but receiving the Summons. The court found no reason to doubt the Affidavit of Service and held the judgment to be regular since service was proved and the Defendant failed to enter appearance.

p. 8
02

Whether the judgment of 26th September 2023 should be set aside

Holding

The court exercised its discretion under Order 10 Rule 11 and Order 12 Rule 7 to set aside the regular judgment in the interest of justice

Reasoning

Although the judgment was regular, the court found the draft defence raised triable issues, the application was filed promptly without delay, and the broad equity approach favours putting right mistakes rather than visiting hardship on a party. Relying on Shah v Mbogo, Chemowolo v Kubede, Murai v Wainaina and Sebei District Administrator v Gasyali, the court held the 1st Defendant should not suffer hardship for his inadvertent mistake.

p. 11
03

Whether the Proposed Interested Party should be joined to the suit

Holding

The Proposed Interested Party was joined as he demonstrated an identifiable stake in the proceedings as legal representative of the estate of Kiprop Arap Rono

Reasoning

Applying the Muruatetu principles and Order 1 Rule 10(2) of the Civil Procedure Rules, the court found the Proposed Interested Party held a Limited Grant (RKH1) to represent the estate, which alleged that land was unprocedurally excised from the deceased's parcel and that a Minister's decision favoured the estate. His personal interest and the prejudice of losing property without being heard were demonstrable, justifying joinder.

p. 13
04

Whether the court should order a re-hearing of the suit

Holding

A re-hearing was ordered after setting aside the judgment and admitting the Interested Party

Reasoning

Having set aside the judgment and joined the Interested Party, the court found it prudent to order a re-hearing once the 1st Defendant files his Defence, to allow all parties an opportunity to be heard on the merits.

p. 13

Legal principles established

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  • Setting aside a default judgment is an equitable remedy available at the court's discretion, not a right of a party
  • A defence with triable issues need not be one that would succeed but one that is bona fide and requires further interrogation at a full trial

Court orders

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  1. 1.Judgment delivered on 26th September 2023 set aside
  2. 2.Proposed Interested Party joined to the proceedings as an Interested Party
  3. 3.Re-hearing of the suit as a defended suit by the 1st Defendant and the other Defendants
  4. 4.1st Defendant and Interested Party to file their Defence within 14 days from the date of the ruling
  5. 5.Plaintiff granted leave of 7 days after service to file a response to the Defence
  6. 6.Parties to have 30 days after close of pleadings to comply with Order 11 by filing trial bundles, and suit set down for hearing
  7. 7.1st Defendant to pay throw away costs of Kshs. 30,000/= to the Plaintiff/Respondent before the next court appearance, failing which the orders issued will lapse automatically
  8. 8.Costs of the applications to be paid by the 1st Defendant
  9. 9.If the 1st Defendant and Interested Party do not comply, the orders will automatically lapse and the earlier judgment of 26th September 2023 will stand reinstated
Jurisdiction invoked
Articles 159 and 50 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 10 Rule 11, Order 12 Rule 7, Order 1 Rule 10(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, "Kirui v Kirui & 2 others; Hillary (Applying as the Legal Representative of the Estate of the Late Kiprop Arap Rono) (Proposed Interested Party) (Environment and Land Case E020 of 2021) [2025] KEELC 6942 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6942/eng@2025-10-09

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