Njoroge (Suing as the administrator of the Estate of Samuel Mwangi Njoroge) v Mwichambe & 3 others (Environment and Land Case E041 of 2022) [2025] KEELC 7583 (KLR)
The bottom line
#A landowner who ignored court papers still got a second chance to defend its title, but had to pay Kshs. 400,000 in costs.
What this practically means
#Executive summary
#Key legal issues
#Whether substituted service by newspaper advertisement was properly effected on the 2nd Defendant
Yes. The court held that service, including substituted service by advertisement pursuant to an order of court and supported by a process server's affidavit under Order 5 Rule 15, was adequate and proper.
The court noted the plaintiff's failed attempts at physical service through the 2nd Defendant's Operations Manager, who declined to disclose the company's physical location. Leave for substituted service was duly granted and advertisements were published in the Standard and Daily Nation. An Affidavit of Service sworn by process server Vincent Mambuya under Order 5 Rule 15 substantiated proper service. The court found the 2nd Defendant was properly served in accordance with the laid-down provisions of the law.
Whether the judgment should be deferred and the suit re-opened to allow the 2nd Defendant to participate
Yes, subject to pre-conditions. Balancing the interests of justice, the court deferred judgment and allowed the 2nd Defendant to file its defence and counter-claim and to recall witnesses for cross-examination, conditioned on payment of thrown away costs.
Applying natural justice, fair hearing and Articles 25(c), 47, 48, 50 and 159 of the Constitution, the court held the 2nd Defendant should not be condemned unheard, especially given competing certificates of title over the suit property and a pending criminal case. However, it acknowledged the 2nd Defendant's inexcusable failure to participate despite proper service and the prejudice of a de novo hearing, mitigated by its offer of thrown away costs. It therefore allowed conditional participation rather than a full de novo restart.
Award of costs of the application
The application being only partially successful, costs of the application were awarded to the Plaintiff/Respondent and 3rd & 4th Defendants/Respondents against the 2nd Defendant/Applicant.
Relying on Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, and the cited authorities on entitlement of the successful party to costs, the court held that although the 2nd Defendant's application partially succeeded, the circumstances justified awarding costs of the application to the opposing parties, who had properly served the 2nd Defendant and expended resources litigating for over three years.
Legal principles established
#- Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise.
- A proprietor is guaranteed a hearing and adduction of credible evidence before a Certificate of Title can be cancelled on grounds of fraud, misrepresentation or corrupt scheme.
Court orders
#- 1.The Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/Applicant is found to be meritorious and is allowed as prayed subject to fulfilment of the stipulated pre-conditions.
- 2.The scheduled delivery of Judgement is deferred until the matter is heard with the participation of the 2nd Defendant/Applicant.
- 3.The 2nd Defendant/Applicant is granted 21 days leave to file and serve its Statement of Defence and Counter-Claim in accordance with Order 7 of the Civil Procedure Rules, 2010, as per the draft annexed as 'JM-6'.
- 4.Upon service, the Plaintiff/Respondent is granted corresponding 21 days leave to file and serve replies to the Defence, Defence to the Counter-Claim and any further documents responding to new issues raised.
- 5.A Pre-Trial Conference to be conducted pursuant to Order 11 of the Civil Procedure Rules, 2010 and a hearing to be held on priority basis.
- 6.The 2nd Defendant/Applicant is at liberty to recall any of the witnesses of the Plaintiff/Respondent, 1st and 3rd Defendants who have already testified for cross-examination and re-examination, per Articles 25(c), 48, 50(1) & (2), 159(1) & (2) of the Constitution, Sections 3 & 13 of the Environment & Land Court Act, Section 146(6) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules.
- 7.The 2nd Defendant/Applicant is directed to pay the Plaintiff/Respondent and 3rd Defendant/Respondent Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=) as thrown away costs within Thirty (30) Days from the date of the Ruling.
- 8.In default of compliance with the directions, the Notice of Motion dated 20th June, 2025 shall stand dismissed automatically by effluxion of time.
- 9.Costs of the application to be borne by the 2nd Defendant/Applicant, awarded to the Plaintiff/Respondent and the 3rd & 4th Defendants/Respondents.
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act, Cap. 21; Section 26(1) of the Land Registration Act, No. 3 of 2012; Article 50(1) of the Constitution of Kenya, 2010; Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge (Suing as the administrator of the Estate of Samuel Mwangi Njoroge) v Mwichambe & 3 others (Environment and Land Case E041 of 2022) [2025] KEELC 7583 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.