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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial Magistrate's refusal to set aside the exparte judgment was a proper exercise of discretion
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.
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.
Whether the pending Kerugoya High Court Succession Cause No. 123 of 2023 warranted a stay of execution or proceedings
No. The succession cause was not shown to have any relationship with the suit.
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.
Legal principles established
#- 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
#- 1.The Appeal is dismissed
- 2.Costs of the Appeal awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.