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ELCDismissedNotice of Motion dated 9th April, 2025 in the suit at Makueni (LC No. 43 of 2031 reference appears in record)· [2025] KEELC 8193 (KLR)

Peter v Muia & another (Environment and Land Case E043 of 2021) [2025] KEELC 8193 (KLR)

Environment and Land Court
27 November 2025
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Makueni court refused to set aside a 2022 land judgment because the applicant waited over two years and showed no real defence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (E. O. Obaga, J) determined a Notice of Motion dated 9th April 2025 by the 1st Defendant, Josephine Zula Muia, seeking review and setting aside of the 2nd and 3rd orders in a judgment delivered on 7th December 2022 and the decree of 5th January 2023, plus prohibitory relief, mandamus compelling the Plaintiff to release the title for LR Makueni/Kiou/1689, and an order for the Government Surveyor to redraw boundaries between LR Makueni/Kiou/1688 and 1689. The application was brought under Sections 1A, 1B, 3A, 20 and 63 of the Civil Procedure Act and Orders 10 Rule 11, 40 and 45 of the Civil Procedure Rules, 2010. The Applicant claimed she was never served with summons and learned of the suit only on 11th September 2024, asserting breach of natural justice; she did not dispute the first order of the decree. The Respondent averred the Applicant was duly served and elected not to participate, with the matter proceeding to formal proof. Framing the sole issue as whether the judgment and decree ought to be set aside, the court found an affidavit of service by a licensed process server proved personal service on 14/01/2022, that the Applicant accepted service but declined to sign, and that the grounds now raised were known at the time of service, rendering the non-service claim implausible. No draft defence was annexed, and the application came two years and four months after final judgment. Relying on CMC Holdings Ltd v James Mumo Nzioki, Shah v Mbogo and Patel v EA Cargo Handling Services Ltd, the court held there was no arguable defence or sufficient cause. Citing Pancras T. Swai v Kenya Breweries Ltd, it further held it was functus officio and could not reopen the decided substantive issues of contract and Land Control Board consent. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the judgment of 7th December 2022 and subsequent decree ought to be set aside

Holding

Application dismissed; service was proved, the interlocutory judgment was regular, no draft defence or triable issues were shown, and delay of over two years was unexplained

Reasoning

An affidavit of service by a licensed process server showed personal service on 14/01/2022, with the Defendant accepting service but declining to sign. The grounds now advanced were known at service, making the non-service claim implausible. No draft defence was annexed, and the application came two years and four months after final judgment, so no sufficient cause for setting aside was established.

02

Whether the court could reopen the substantive questions of a valid sale contract and Land Control Board consent

Holding

No; the court is functus officio having determined ownership in the final judgment

Reasoning

The issues raised under prayers 3, 4 and 5 of the application went to ownership, which had been decided in the judgment of 7th December 2022. Review cannot be used to attack a decision as erroneous in law; that is a matter for appeal. The court relied on Pancras T. Swai v Kenya Breweries Limited to hold that review jurisdiction cannot substitute appellate jurisdiction.

p. 4

Legal principles established

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  • The court has an unfettered discretion to set aside ex parte/default judgment which must be exercised judiciously
  • Setting aside requires demonstration of reasons for default and a defence raising triable issues
  • A court that has delivered final judgment is functus officio and cannot reopen substantive issues by way of review

Court orders

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  1. 1.The Notice of Motion dated 9th April, 2025 is dismissed with costs to the Respondent
Jurisdiction invoked
Sections 1A, 1B, 3A, 20 and 63 of the Civil Procedure Act; Order 10 Rule 11, Order 40 and Order 45 of the Civil Procedure Rules, 2010

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, "Peter v Muia & another (Environment and Land Case E043 of 2021) [2025] KEELC 8193 (KLR)", Case Analysis (2025). Notice of Motion dated 9th April, 2025 in the suit at Makueni (LC No. 43 of 2031 reference appears in record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8193/eng@2025-11-27

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