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ELCAllowed· [2026] KEELC 1222 (KLR)

Chege & 6 others v Mboi Kamiti Farmers Co Ltd & 2 others (Land Originating Summons E015 of 2023) [2026] KEELC 1222 (KLR)

Environment and Land Court
3 March 2026
MGM.N. Gicheru
672 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a land dispute order made against a party who was never served with the application behind it.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, Judge) determines a notice of motion dated 30-10-2025 brought under Section 3A of the Civil Procedure Act, Orders 40 rule 7 and Order 45 rule 1 of the Civil Procedure Rules and Article 159(d) of the Constitution, seeking discharge, variation or setting aside of the court's orders issued on a notice of motion dated 13-2-2025. The applicant, the 3rd Respondent in the main suit, argued errors apparent on the face of the record: the court restrained interference with occupation of the suit land although he had been in occupation since purchasing it in 2014; the court issued a substantive interim order cancelling any transfers made during the suit; status quo was tied retrospectively to the date of suit; and injunction relief was granted in an originating summons with no such prayer. He further contended he was never served with the originating summons or the 13-2-2025 motion. The court, without a replying affidavit or submissions before it, found no evidence of service on the applicant - the affidavit of service showed only Mwangi Wambugu & Co. Advocates and the 2nd Respondent were served, that firm acting for the 1st Respondent only - making the order unfair as against him. It also held that cancellation of transfers was substantive relief improperly granted before trial, an error the judge regretted. The motion was allowed in terms of prayer 2, the order of 24-2-2025 was set aside, with costs in the cause.

Key legal issues

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01

Service of the application leading to the impugned order

Holding

The order of 24-2-2025 was set aside because the 3rd Respondent was not served and it was unfair to bind him

Reasoning

The affidavit of service showed only Mwangi Wambugu & Co. Advocates and the 2nd Respondent were served, yet that firm acted for the 1st Respondent only. The 3rd Respondent learned of the order only on 12-10-2025, so he could not oppose the motion of 13-2-2025. Issuing the order against an unserved party was neither fair nor just.

p. 2
02

Grant of substantive relief at the interlocutory stage

Holding

The court erred in ordering cancellation of transfers before trial, an error apparent on the face of the record

Reasoning

The motion of 13-2-2025 sought, and the court granted, an order cancelling any transfers made during the suit and restoring the land to its position at filing. That is final, substantive relief properly granted only after full trial. The judge expressly regretted the error and treated it as an error apparent on the face of the record under Order 45 rule 1.

p. 2

Legal principles established

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  • An order should not issue against a party who was never served with the application
  • Orders for cancellation of transfers of suit land are substantive and should await trial, not issue at the interlocutory stage

Court orders

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  1. 1.The notice of motion dated 30-10-2025 is allowed in terms of prayer 2
  2. 2.The order dated 24-2-2025 is set aside
  3. 3.Costs in the cause
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Orders 40 rule 7 and Order 45 rule 1 of the Civil Procedure Rules and Article 159(d) of the Constitution of Kenya

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, "Chege & 6 others v Mboi Kamiti Farmers Co Ltd & 2 others (Land Originating Summons E015 of 2023) [2026] KEELC 1222 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1222/eng@2026-03-03

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