Kathuthu (Suing as the legal representative of the Estate of Nkuni M’Turuchiu -Deceased) v Kiunga (Suing as the legal representative of the Estate of Stephen Michuki Kiunga - Deceased) (Environment and Land Appeal E084 of 2024) [2025] KEELC 7820 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an ex-parte land judgment, ruling serious illness and triable defence issues justified a full hearing on the merits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex-parte judgment dated 10/11/2022 was regular or irregular
- 2.Whether the application dated 14/5/2024 met the criteria for setting aside the ex-parte judgment
Key legal issues
#Whether the ex-parte judgment of 10/11/2022 was regular or irregular
The judgment was regular because the hearing date was fixed by consent in the presence of the appellant's counsel, and the Attorney General (third party) was served with a hearing notice.
The hearing date of 29/9/2022 was taken on 21/7/2022 in the presence of the appellant's counsel, so no hearing notice was necessary as against the appellant. The Attorney General was joined as third party by the appellant, who bore responsibility for serving a hearing notice; the record shows an affidavit of service evidencing service on the Attorney General on 26/8/2022. Following James Kanyiita Nderitu, a judgment entered after a consensual hearing date is regular and its setting aside is discretionary, not ex-debito justitiae.
Whether the application dated 14/5/2024 met the criteria for setting aside the regular ex-parte judgment
Yes. The appellant gave a satisfactory explanation for non-attendance and for the delay, grounded in his battle with stomach cancer from 2020 and his advocate's failure to update him; triable issues existed and eviction without a hearing would be prejudicial.
The trial court ignored the appellant's further affidavit and medical evidence of gastric adenocarcinoma, which was relevant to the exercise of discretion. The defence and counterclaim raised issues - including whether the suit was filed before closure of the adjudication register without requisite consent, a jurisdictional question - which warranted consideration. Eviction without any form of hearing would be prejudicial. The trial court therefore erred in rejecting the application.
Costs consequences of counsel's failure to attend a consensual hearing date
Because the ex-parte proceedings were caused by the appellant's own advocate, the appellant was to bear the costs of the ex-parte proceedings and of the setting-aside application, assessed at Kshs 50,000 in total.
The court balanced the interest of justice in having the dispute heard on merit against the respondent's exposure to unnecessary costs. Since the appellant's agent (advocate) allegedly caused the non-attendance on a mutually agreed date, the appellant was made to bear the throwaway costs of the ex-parte proceedings (Kshs 25,000) and of the application dated 14/5/2024 (Kshs 25,000), while each party bore their own costs of the appeal.
Legal principles established
#- Where a hearing date is taken by consent, service of a hearing notice is unnecessary and the resulting ex-parte judgment is regular, to be set aside only in the exercise of discretion under Order 10 rule 11.
- A serious illness supported by medical evidence can constitute a satisfactory explanation for non-attendance and for delay in moving to set aside an ex-parte judgment.
- On a first appeal, the court must re-evaluate the whole evidence and reach its own independent conclusions.
Court orders
#- 1.The Lower Court's ex-parte judgment dated 10/11/2022 is set aside on condition that the appellant pays the respondent throwaway costs of the application dated 14/5/2024 and costs of the ex-parte proceedings, together assessed at Kshs 50,000/-
- 2.The said costs are to be paid within 30 days; in default, the order and any consequential decree shall stand vacated and substituted with an order dismissing the appeal with costs
- 3.Each party to bear their respective costs of the appeal
- 4.The suit is remitted to the Lower Court for the defence and counterclaim to be considered and disposed on merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Tigania
- Tigania PMC E & L Case No. 23 of 2014 (ruling dated 17/10/2024, Hon E M Ayuka - PM)
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over a ruling of the Principal Magistrate's Court (appeal against refusal to set aside ex-parte judgment under Order 12 rule 7 of the Civil Procedure Rules)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the court sets aside the Lower Court's ex-parte judgment dated 10/11/2022 on condition that the appellant pays the respondent throwaway costs of the application dated 14/5/2024 and costs of the ex-parte proceedings, together assessed at Kshs 50,000/-.
The said costs are to be paid within 30 days. In default, this order and any consequential decree shall stand vacated and substituted with an order dismissing this appeal with costs. The appeal succeeds and is allowed in the above terms.
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with Summons to Enter Appearance.
This merely means that there are issues on the defence and counterclaim which need to be considered, interrogated and disposed by the Lower Court at whatever point the Lower Court deems it appropriate.
Parties will bear their respective costs of the appeal.
Issues in the judgment
#The judgment inconsistently names the judicial officer of the trial court: the coram reference is Hon E M Ayuka - PM while the coram title elsewhere and the appeal characterisation differ from other case numbers cited with different year references.
The judgment inconsistently dates Meru High Court Petition No. 21: referred to as No. 21 of 2012 by the appellant and No. 21 of 2021/2022 by the respondent and the court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathuthu (Suing as the legal representative of the Estate of Nkuni M’Turuchiu -Deceased) v Kiunga (Suing as the legal representative of the Estate of Stephen Michuki Kiunga - Deceased) (Environment and Land Appeal E084 of 2024) [2025] KEELC 7820 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7820/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.