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ELCDismissedNarok CMELC No. 7 of 2018 (Appeal)· [2026] KEELC 380 (KLR)

Ndovu Estates Ltd v Ntutu (Environment and Land Appeal E002 of 2023) [2026] KEELC 380 (KLR)

Environment and Land Court
29 January 2026
LGL. GACHERU
4,930 words in judgment
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The bottom line

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The Environment and Land Court in Narok dismissed Ndovu Estates' appeal but set aside the 2019 judgment, sending the case back for the defendant to finally present his defence.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Narok (L. Gacheru J) against a ruling of the Chief Magistrate's Court delivered on 1st August 2023, which dismissed the Appellant's (plaintiff's) Notice of Motion dated 6th March 2023. The motion had sought to set aside the trial court's ruling of 6th January 2021 (which stayed the plaintiff's judgment of 10th July 2019 awarding Ksh. 1,534,543.95 plus interest) and to confirm that judgment, lift the stay, and allow execution. The background: judgment was entered against the Defendant in default of attendance at a consented hearing; the Defendant obtained a ruling of 6th January 2021 reviewing the order closing his defence, staying execution, and allowing him to tender his defence - but the judgment itself was never set aside. He then failed to fix the matter for defence hearing, prompting the Appellant's 2023 application. The Appellant argued that since the 2019 judgment was never set aside it remained valid, that a defence could not be tendered against an extant judgment, and that the trial magistrate erred in dismissing the application and suggesting implied setting aside. The Respondent contended the suit belongs to the plaintiff, who should set it down, and that he had a right to be heard in defence. The court, applying Sections 65 and 78 of the Civil Procedure Act and the Selle and Mbogo v Shah principles, found the 2023 application premature, holding the Appellant should have sought review or interpretation of the 6th January 2021 ruling instead of waiting two years. It found the Respondent primarily responsible for fixing the defence hearing but faulted both parties. To resolve the anomaly of a stayed but extant judgment, the court set aside the 10th July 2019 judgment under Order 12 Rule 7, dismissed the appeal, remitted the file for defence hearing to be fixed by the Respondent within 30 days, failing which the judgment would revive, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the trial court erred in dismissing the Appellant's application to set aside the Ruling of 6th January 2021 and confirm the judgment of 10th July 2019

Holding

The appeal was not merited; the trial court exercised its discretion properly, and the Appellant's application was premature as it should first have sought review or interpretation of the 6th January 2021 ruling

Reasoning

The court found that the Ruling of 6th January 2021 stayed but did not set aside the judgment, leaving ambiguity. However, the Appellant waited two years before moving the court, making the application premature. The trial court's discretionary finding could not be disturbed absent misdirection. In the interest of justice under Section 3A, this court set aside the 2019 judgment itself to resolve the ambiguity, and remitted the matter for defence hearing with the Respondent obliged to fix it down.

p. 8
02

Who bears the duty to set the matter down for defence hearing after the 6th January 2021 ruling

Holding

The Respondent (Defendant), having sought the opportunity to present its defence, bore the primary duty, but the Appellant as plaintiff and mover of the suit should also have set the suit down and served hearing notices

Reasoning

The court disagreed with the Respondent that it could simply wait for the Plaintiff to fix the matter, since the Respondent was the party who had applied to be allowed to present its defence. At the same time, the Plaintiff as mover of the suit should have set the matter down, served hearing notices, and then moved the court if the Respondent defaulted. Both parties bore a duty under Section 1B of the Civil Procedure Act to facilitate the overriding objective of expeditious determination.

p. 7

Legal principles established

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  • A first appellate court will not interfere with the exercise of the trial court's discretion unless it misdirected itself or was clearly wrong causing injustice
  • A party granted an opportunity to present its defence bears responsibility for setting the matter down for defence hearing
  • Stay of execution leaves a judgment alive but unenforceable, whereas setting aside extinguishes it

Court orders

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  1. 1.Appeal dismissed entirely
  2. 2.The judgment of 10th July 2019 delivered by Hon Gesora SPM varied and set aside under Order 12 Rule 7 of the Civil Procedure Rules
  3. 3.File remitted to the Chief Magistrate's Court at Narok for setting down the matter for defence hearing
  4. 4.Respondent/Defendant to set the matter down for defence hearing within 30 days
  5. 5.If the Respondent fails to set the matter down, the orders of 9th April 2019 and the Ruling of 6th January 2021 shall stand varied and set aside and the judgment of 10th July 2019 will remain valid and enforceable
  6. 6.Each party to bear its own costs of the appeal and lower court proceedings
On appeal from
Chief Magistrate's Court, Narok
Narok CMELC No. 7 of 2018
Jurisdiction invoked
Section 65 and Section 78 of the Civil Procedure Act (first appeal)

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, "Ndovu Estates Ltd v Ntutu (Environment and Land Appeal E002 of 2023) [2026] KEELC 380 (KLR)", Case Analysis (2026). Narok CMELC No. 7 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/380/eng@2026-01-29

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