Ndundu & 2 others v Embakasi Ranching Company & 5 others (Environment and Land Case 281 of 2012) [2026] KEELC 1148 (KLR)
The bottom line
#Nairobi's Environment and Land Court set aside a land judgment and contempt orders, ruling that suing a dead person makes the case void.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 8th June 2023 was irregular and should be set aside
The judgment was irregular: it was entered against the 2nd Defendant, a deceased person who died on 28th February 2010 before the suit was filed, and service on the 4th and 5th Defendants after their advocate ceased acting was not clear or proper. Sufficient cause was shown and the judgment was set aside with the suit to commence de novo.
The court distinguished regular from irregular default judgment per James Kanyiita Nderitu. The undisputed death certificate showed suit was filed against a dead person, rendering any purported service and the resulting ex parte judgment irregular. Service on the 4th and 5th Defendants directly after cessation of their advocate was not demonstrated on the record. Both the applicant and the Defendants therefore showed sufficient cause, warranting setting aside and a trial de novo.
Whether Peter Njoroge Kimani should be joined as a party at this stage
Joinder was warranted under Order 1 Rule 10(2) as he stakes ownership of Plot C20, holds a title, has possessed and developed it for over 20 years, and his presence is necessary for complete adjudication and to avoid multiplicity of suits.
The court applied Order 1 Rule 10(2) and authority that joinder may occur at any stage of pending proceedings, and the Meme v Republic criteria: complete settlement of questions, protection of rights otherwise adversely affected, and prevention of proliferated litigation. The applicant claims title to Plot C20, a suit plot, making him a necessary party.
Whether the contempt orders of 24th June 2025 should be set aside
They were set aside as a consequence of setting aside the underlying judgment.
The contempt committal orders were founded on the judgment of 8th June 2023. Once that judgment was set aside, the foundation of the contempt orders disappeared, so the contempt issue could not stand. The court accordingly set aside the orders of 24th June 2025.
Whether the Plaintiffs' prayer for review of the eviction orders to substitute OCS Kamulu for OCS Ruai should be granted
Refused; although unopposed, there was no decree left to enforce after the judgment was set aside.
The court has discretion to review under Order 45 on grounds of new matter, mistake or error apparent, or other sufficient reason. But because the judgment of 8th June 2023 had already been set aside, the decree it sought to make enforceable no longer existed, so the review was rendered moot on the facts.
Legal principles established
#- An irregular default judgment, entered against a party not properly served, is set aside as a matter of right
- An application for joinder of parties can be filed only in pending proceedings, but may be made at any stage, even after judgment where damages are yet to be assessed
- Where a judgment sought to be enforced has been set aside, contempt orders founded on it cannot stand and review of the enforcement orders cannot issue
Court orders
#- 1.The judgement delivered on 8th June 2023 be and is hereby set aside
- 2.The Orders issued on the 24th June, 2025 are hereby set aside
- 3.Peter Njoroge Kimani is hereby joined in this suit as a 7th Defendant
- 4.The Plaintiffs are ordered to serve the 7th Defendant with their pleadings within 14 days from the date hereof
- 5.Upon service the 7th Defendant is directed to file and serve his Defence in fourteen (14) days
- 6.Costs will be in the cause
- Jurisdiction invoked
- Inherent jurisdiction and Civil Procedure Rules (Order 1 Rule 10(2), Order 10 rule 11, Order 45) in a first-instance land suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndundu & 2 others v Embakasi Ranching Company & 5 others (Environment and Land Case 281 of 2012) [2026] KEELC 1148 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1148/eng@2026-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.