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ELCDismissedNot stated in the judgment (Baricho PM ELC Appeal against Ruling in ELC No. 25 of 2019)· [2025] KEELC 7888 (KLR)

Munene & 4 others v Mathenge (Suing as the Next Friend of Gerald Muthigani Ngari) (Environment and Land Appeal 47 of 2023) [2025] KEELC 7888 (KLR)

Environment and Land Court
12 November 2025
1,562 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kerugoya dismissed landowners' appeal because they ignored a properly served court hearing notice and gave no good reason for missing the case.

What this practically means

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Executive summary

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The Appellants, defendants in Baricho PM ELC No. 25 of 2019, appealed against a ruling of Hon. D.M. Ireri PM dated 24th November 2023 dismissing their application to set aside an exparte judgment delivered on 11th August 2023, to be granted leave to defend the suit, or in the alternative to stay execution pending determination of Kerugoya High Court Succession Cause No. 123 of 2023. The trial Magistrate found the Appellants had been served with a hearing notice and waived their right to attend; the succession cause was unrelated to the suit. On appeal, the Appellants argued they were never served and that an Advocate's failure to communicate should not be visited on clients, and sought to have the ruling set aside so they could defend. The Respondent maintained service was proper and no cogent reason for non-attendance was given. The appeal was argued by written submissions; the Appellants never filed theirs despite repeated extensions. J. M. Mutungi, ELC Judge, reiterated the duty of a first appellate court to re-evaluate evidence (Selle v Associated Motor Boat Co.), and applying Shah v Mbogo held the trial court had perused the affidavit of service and was satisfied the defendants were duly served; the hearing notice was served directly on the Appellants, and their strained relationship with former advocates Magee LLP did not explain non-attendance. The Respondent had obtained a valid and regular judgment and was entitled to its fruits. The pending succession cause was unrelated. The appeal was dismissed with costs to the Respondent on 12th November 2025.

Key legal issues

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01

Whether the trial Magistrate's refusal to set aside the exparte judgment was a proper exercise of discretion

Holding

Yes. The Appellants were duly served with a hearing notice, the affidavit of service was perused and satisfied the court, and they offered no viable explanation for non-attendance; the judgment was valid and regular and the Respondent was entitled to its fruits.

Reasoning

The hearing date was fixed in the presence of counsel for the Respondent and the 2nd Appellant; the trial court perused the affidavit of service and was satisfied the defendants were duly served. The previous advocates had been allowed to cease acting, and the hearing notice was served directly on the Appellants, so the strained relationship with their advocate did not explain non-attendance. Their conduct was casual and they were not diligent; justice cuts both ways and the discretionary refusal was justified.

p. 3
02

Whether the pending Kerugoya High Court Succession Cause No. 123 of 2023 warranted a stay of execution or proceedings

Holding

No. The succession cause was not shown to have any relationship with the suit.

Reasoning

The Learned Magistrate observed that the pending succession cause had not been demonstrated to bear any relationship with the suit so as to warrant a stay; this Court found the trial Magistrate equally justified in declining the application to set aside the judgment for want of a viable explanation for non-attendance.

p. 2

Legal principles established

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  • On a first appeal the court has a duty to re-evaluate the evidence and is not bound by the trial court's findings
  • A party duly served with a hearing notice who offers no justifiable reason for non-attendance cannot obtain setting aside of a valid and regular judgment; the discretion to set aside is exercised to avoid injustice from accidents, inadvertence or excusable mistake, not to assist deliberate default

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Costs of the Appeal awarded to the Respondent

Authorities

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Cases cited (2)

  • Selle & Another –vs- Associated Motor Boat Co. Ltd & Another
    (1968) EA 123
  • SHAH – vs – MBOGO
    [1967] EA 166
On appeal from
Baricho Principal Magistrate's Court (ELC)
ELC No. 25 of 2019 (Ruling by Hon. D.M. Ireri PM)
Jurisdiction invoked
First appellate jurisdiction over a ruling of the Principal Magistrate's Court (Environment and Land jurisdiction)

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, "Munene & 4 others v Mathenge (Suing as the Next Friend of Gerald Muthigani Ngari) (Environment and Land Appeal 47 of 2023) [2025] KEELC 7888 (KLR)", Case Analysis (2025). Not stated in the judgment (Baricho PM ELC Appeal against Ruling in ELC No. 25 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7888/eng@2025-11-12

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