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ELCAllowedELC Case (Originating Summons dated 2nd March 2021), Kajiado

Mokoi & 12 others v Sio (Enviromental and Land Originating Summons E001 of 2021) [2025] KEELC 8040 (KLR)

Environment and Land Court
6 November 2025
MMM.D. Mwangi
3,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kajiado's Environment and Land Court set aside an order that imposed another case's judgment on land occupants who were never heard, restoring their right to a full trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) on the Plaintiffs' Notice of Motion dated 23rd September 2024, brought under Order 45 of the Civil Procedure Rules, seeking to set aside a direction issued on 8th April 2024 that the judgment in ELC 165 of 2018 (Peter Mwinzi Muindi & Others v Kenyuco Housing Cooperative Society Limited) should apply to this suit. The Plaintiffs had filed an Originating Summons dated 2nd March 2021 seeking to be declared owners of twelve parcels in Kajiado/Kaputiei-North by adverse possession. They contended that the 8th April 2024 direction was issued in their absence, condemned them unheard, and exposed them to eviction following the Defendant's notice dated 17th May 2024. The Defendant opposed, arguing that the suit had been held in abeyance pending ELC 165 of 2018, in which he had been adjudged owner of parcels including the suit parcels, and that the Plaintiffs' possession had been interrupted so prescription could not apply. The court identified a single issue: whether the Plaintiffs met the threshold for setting aside the 8th April 2024 orders. Reviewing the record and the judgment in ELC 165 of 2018, the court found the Plaintiffs were not parties to that suit, the prescription claim was never tried, the suit parcels' ownership as between these parties was not determined, and the court had earlier held the suits unrelated. The direction was therefore an error apparent on the face of the record. The application was allowed, the directive set aside, the suit to proceed to hearing on its merits, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Plaintiffs have met the threshold to justify the setting aside of the orders issued on 8th April, 2024

Key legal issues

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01

Whether the order of 8th April 2024 directing that judgment in ELC 165 of 2018 apply to this suit should be set aside on review

Holding

The application succeeds; the order was an error apparent on the face of the record because the Plaintiffs were not party to ELC 165 of 2018, the prescription claim was never tried, and the court had earlier held the suits unrelated.

Reasoning

The court reviewed its record and found the earlier direction was issued in absence of the parties. The trial court's judgment in ELC 165 of 2018 determined ownership of parcels 3517-3888 as between parties to that suit only. The Plaintiffs' adverse possession claim over the suit parcels had never been heard, and the court had earlier opined the suits were unrelated. Applying that judgment to this suit condemned the Plaintiffs unheard and was a self-evident error justifying review under Order 45 Rule 1(1)(b).

Legal principles established

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  • A party who was not heard and whose suit has not been determined on its merits cannot be bound by directions applying another suit's judgment to their case; such a direction constitutes an error apparent on the face of the record warranting review.
  • Review may be granted where there is an error or omission on the part of the court that is self-evident and does not require elaborate argument to establish.

Court orders

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  1. 1.The order issued by the court on 8th April, 2024 stating that the judgment dated 8th April, 2024 in ELC Case No. 165 of 2018: Peter Mwinzi Muindi & Others v Kenyuco Housing Cooperative Society Limited shall apply to this case is set aside
  2. 2.The case shall be set down for hearing on its merits
  3. 3.The costs of the application shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Articles 10, 19, 20, 21, 22, 23, 27, 40, 48, 50, 150 and 162 of the Constitution; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Orders 22, 40 and 45 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Given the existence of the error apparent on the face of the record, I find that the Plaintiffs’ Notice of Motion dated 23rd September, 2024 is meritorious and proceed to allow it as prayed.
p. 7Review - error apparent on the face of the record
Accordingly, the Order issued by this honorable court on 8th April, 2024 , stating that the judgment dated 8th April, 2024 in ELC Case No. 165 of 2018: Peter Mwinzi Muindi & Others v Kenyuco Housing Cooperative Society Limited shall apply to this case, is hereby set aside.
p. 7Final orders - setting aside the directive
This shall case shall be set down for hearing on its merits. The costs of the application shall be in the cause.
p. 7Disposition - hearing on merits and costs
The issue of whether the Defendant lost his proprietary rights over the suit properties as an absentee landlord under the doctrine of prescription is yet to be heard and determined on merit.
p. 7Adverse possession claim undecided

Issues in the judgment

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minor

Defendant's submissions refer inconsistently to 'ELC 265 of 2018' where 'ELC 165 of 2018' is meant

minor

The court states the suits 'were never related' yet the earlier judgment in ELC 165 of 2018 was directed to apply to this suit; also a typo in the closing orders

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, "Mokoi & 12 others v Sio (Enviromental and Land Originating Summons E001 of 2021) [2025] KEELC 8040 (KLR)", Case Analysis (2025). ELC Case (Originating Summons dated 2nd March 2021), Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8040/eng@2025-11-06

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