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ELCPartially Allowed· [2025] KEELC 7786 (KLR)

Abdulwahab & another v Mwashetani (Environment and Land Civil Appeal E003 of 2025) [2025] KEELC 7786 (KLR)

High Court of Kenya
13 November 2025
JOJ. O. Olola
2,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court let two landowners appeal a default judgment late, ruling that a power of attorney holder can validly swear affidavits and technical mistakes won't sink applications.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th February 2025, Murtadha Daud Sidik Abdulwahab and Faiza Yeslam Mohamed, the Appellants, sought leave to file a Memorandum of Appeal out of time against the judgment and decree of the Chief Magistrates Court dated 14th and 18th August 2024, a temporary injunction restraining dealings with land parcels MN/I/20021 CR No. 60675 and MN/I/20022 CR No. 60674, and setting aside of the ex-parte judgment entered in an adverse possession suit. The Respondent, Khatib Abdallah Mwashetani, filed a Notice of Preliminary Objection and a Replying Affidavit, contending the supporting affidavit was sworn by a person without locus standi, that the Motion offended Order 51 Rule 10 of the Civil Procedure Rules and the Constitution, and that the Applicants were duly served by substituted service through the Standard Newspaper. The court dismissed the preliminary objection in its entirety: the deponent was a donee of a registered General Power of Attorney and had locus; failure to cite the enabling provision is not fatal under Order 51 Rule 10; the constitutional ground was not elaborated; and the complaint over annexures rested on disputed facts unsuitable for a preliminary objection, as per Oraro v Mbaja. On the extension of time, applying Section 79G of the Civil Procedure Act and the Thuita Mwangi factors, the court found the appeal arguable, the delay explainable since the Applicants were abroad at the time of substituted service, and no prejudice to the Respondent. The Motion was allowed in terms of prayers 2 and 3, with 21 days granted to file and serve the Memorandum of Appeal; costs were made costs in the Appeal.

Key legal issues

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01

Locus standi of the deponent to the Supporting Affidavit

Holding

The deponent, a donee of a registered General Power of Attorney, had locus to swear the affidavit

Reasoning

The court noted that locus standi means the right to appear and be heard and requires sufficiency of interest. Exhibit 'A' showed the Appellants had donated a registered General Power of Attorney dated 18th January 2012 to Mohamed Islam Saariy and Salma Yeslam Mohamed. The contested affidavit was sworn by one of the donees, hence he had the locus.

p. 3
02

Effect of failure to cite the enabling provision under Order 51 Rule 10

Holding

Failure to state the provision under which an application is made is not fatal

Reasoning

Order 51 Rule 10(1) requires that the provision under which an application is made be ordinarily stated, but expressly provides that no objection shall be made and no application refused merely by reason of failure to comply, and no application shall be defeated on a technicality that does not affect its substance.

p. 3
03

Whether leave to file appeal out of time should be granted under Section 79G

Holding

Leave granted: the appeal was arguable, the delay explainable, and the Respondent would suffer no prejudice

Reasoning

Applying the Thuita Mwangi factors, the court found the Applicants may have been unaware of the suit since substituted service by newspaper occurred while they were abroad on passport evidence, and the Respondent did not show when the Applicants learnt of the judgment. The appeal was arguable and the Respondent would suffer no prejudice if it were heard on merit.

p. 5

Legal principles established

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  • A preliminary objection must not rest on disputed facts or factual information to be tested by evidence
  • An application cannot be defeated merely because the enabling order or rule is not stated
  • An appeal may be admitted out of time where the appellant shows good and sufficient cause

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 14th March 2025 is dismissed
  2. 2.The Appellant's Notice of Motion dated 11th February 2025 is allowed in terms of prayers 2 and 3 thereof
  3. 3.The Appellants have 21 days within which to file and serve the Memorandum of Appeal
  4. 4.The costs of both the objection and the application shall be in the Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 10
  • Civil Procedure Act, Cap 21Section 79G
  • Constitution of Kenya, 2010Article 40 (as cited in the Preliminary Objection); Article 50 (as discussed by the court)

Cases cited (2)

  • Oraro –vs- Mbaja
    (2005) 1 KLR 141
  • Thuita Mwangi –vs- Kenya Airways Ltd
    (2003) eKLR
On appeal from
Chief Magistrates Court
Not stated
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Cap 21 (appeal from a subordinate court to the High Court)

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, "Abdulwahab & another v Mwashetani (Environment and Land Civil Appeal E003 of 2025) [2025] KEELC 7786 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7786/eng@2025-11-13

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