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ELCPartially AllowedNot stated in judgment (suit over parcel No. N. Kabras/Malava/3446)· [2026] KEELC 275 (KLR)

Shembekho v Chemche & 3 others (Environment and Land Case 193 of 2014) [2026] KEELC 275 (KLR)

Environment and Land Court
28 January 2026
ANA. Nyukuri
1,648 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 Kenyan land court threw out a six-year-old ex parte judgment because the defendants' lawyer was never properly served with the hearing notice.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (A. Nyukuri J, delivered virtually on 28th January 2026) determined two applications arising from a land dispute over parcel No. N. Kabras/Malava/3446. The plaintiff sought an order that the Officer in charge of Malava Police Station provide security and supervise the defendants' eviction pursuant to an ex parte judgment and eviction orders issued on 6th March 2018. The defendants, through the 1st defendant Shango Chemche, sought setting aside of that judgment and reopening of the case, contending that the process server never served their advocate with the hearing notice for the hearing of 14th December 2017, that the signature on the hearing notice was a forgery, and that they had a defence raising triable issues. The court framed two issues: whether the defendants met the threshold for setting aside the ex parte judgment, and whether police should be authorized to provide security for the eviction. Applying Order 10 Rule 11 of the Civil Procedure Rules and the CMC Holdings Ltd v Nzioki test, the court compared the impugned signature with undisputed specimens of the defendants' advocate's signature and found no semblance, concluding service was not effected and the hearing violated the defendants' Article 50 right to a fair hearing. The court held that where service fails, inquiry into a triable defence is unnecessary. It allowed the defendants' application, set aside the ex parte judgment, reopened the case, and granted leave to cross-examine the plaintiff's witnesses. The plaintiff's application for police-assisted eviction was dismissed as baseless. Noting indolence by both parties, the court made no order as to costs.

Key legal issues

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01

Whether the defendants met the threshold for setting aside the ex parte judgment of 6th March 2018

Holding

Yes. The court found the signature on the hearing notice of 14th December 2017 was not the defendants' advocate's, so service was not effected, the matter proceeded without affording the defendants a hearing, and the judgment was irregular in that sense; the ex parte judgment was set aside and the case reopened

Reasoning

The court compared the impugned signature on the hearing notice with undisputed signatures of Mr. Kraido on the Memorandum of Appearance and a prior hearing notice. It found no semblance between them. Since service of the hearing notice was not proved, the hearing proceeded without notice, violating Article 50 fair-hearing rights. Once service fails, the court need not interrogate whether a triable defence exists. Both parties were nonetheless indolent, but fair hearing and interests of justice favoured setting aside.

p. 3
02

Whether police should provide security for the defendants' eviction

Holding

No. The application depended on the ex parte judgment which was set aside, so the security-for-eviction application was dismissed

Reasoning

The plaintiff's application of 24th July 2024 sought police supervision of eviction pursuant to the judgment of 6th March 2018. Having set aside that judgment and reopened the case, the court found the application baseless and dismissed it. The court also noted the plaintiff's own delay since 2018 in serving or executing the judgment, finding both parties guilty of indolence.

p. 4

Legal principles established

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  • Service of the hearing notice must be confirmed before interrogating whether a defence raises triable issues; where service was not effected, the right to a fair hearing is engaged
  • The power to set aside ex parte judgment is discretionary, to be exercised judiciously and upon reasons, considering both reasons for non-attendance and whether a triable defence exists

Court orders

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  1. 1.The ex parte judgment delivered on 6th March 2018 is set aside
  2. 2.The case is reopened
  3. 3.The defendant is granted leave to cross examine the plaintiff's witnesses
  4. 4.The plaintiff's application dated 24th July 2024 seeking police security for eviction is dismissed
  5. 5.No order as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; setting aside of ex parte judgment under Order 10 Rule 11 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, "Shembekho v Chemche & 3 others (Environment and Land Case 193 of 2014) [2026] KEELC 275 (KLR)", Case Analysis (2026). Not stated in judgment (suit over parcel No. N. Kabras/Malava/3446). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/275/eng@2026-01-28

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