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ELCDismissedNot stated in the judgment (ELC, Mombasa; related suit ELC No. 425 of 2009 referenced)· [2026] KEELC 1515 (KLR)

Ethics and Anti-Corruption Commission v Luyali (Suing as Administrator of the Estate of Ezekiel Luyali Liyai) & 2 others; County Government of Mombasa & another (Interested Parties) (Environment and Land Case E049 of 2023) [2026] KEELC 1515 (KLR)

Environment and Land Court
12 March 2026
2,360 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to reopen a land case, ruling that missing hearings without a credible excuse forfeits your chance to be heard.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Y. M. Angima, J) on an application dated 09.10.2025 by the 1st defendant, filed just before delivery of judgment in a suit in which the plaintiff alleges that Mombasa/Block XIX/305 is a road reserve illegally created from Machakos Road and fraudulently leased to the 1st defendant by the 2nd and 3rd defendants. The 1st defendant's legal representative, Japhet Mwamburi Luyali, sought to arrest the judgment, set aside the proceedings and reopen the case, claiming he had never been served with hearing notices following the death of James Luyali on 21.05.2017. The plaintiff opposed, showing through affidavits of service that the 1st defendant's advocate (Mr. Amadi of Kadima & Co Advocates) was served with hearing notices for the hearings of 22.01.2025 and 10.06.2025 but never attended. Applying Shah v Mbogo, the court held that the discretion to set aside ex parte proceedings is not designed to assist those who obstruct or delay justice. The 1st defendant offered no credible explanation for his advocate's non-attendance and showed no bona fide defence. Granting leave would delay the suit contrary to the overriding objective under sections 1A and 1B of the Civil Procedure Act. The application was dismissed with costs to the plaintiff, and judgment was fixed for 02.07.2026.

Key legal issues

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01

Whether to grant leave to reopen the case and set aside ex parte proceedings

Holding

Application dismissed; the 1st defendant failed to demonstrate excusable default or a bona fide defence

Reasoning

The 1st defendant entered appearance and was represented by advocate Amadi, who was served with hearing notices for the hearings of 22.01.2025 and 10.06.2025 as shown by affidavits of service, but never attended. No letter or affidavit from the previous advocate explained the non-attendance, and the applicant gave no candid explanation. Granting leave would delay conclusion of the suit contrary to sections 1A and 1B of the Civil Procedure Act, and no bona fide defence was demonstrated.

p. 5
02

Costs of the application

Holding

Costs awarded to the plaintiff, the successful party

Reasoning

Applying the general rule that costs follow the event under the proviso to section 27 of the Civil Procedure Act, and following Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court saw no reason to depart from the rule and awarded the plaintiff the costs of the application.

p. 5

Legal principles established

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  • The discretion to set aside ex parte proceedings is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who deliberately sought to obstruct or delay justice
  • An applicant for setting aside ex parte proceedings must provide a credible and reasonable explanation for his default before the discretion is exercised in his favour
  • Costs follow the event under the proviso to section 27 of the Civil Procedure Act unless the court for good reason directs otherwise

Court orders

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  1. 1.The 1st defendant's application dated 09.10.2025 is dismissed
  2. 2.The plaintiff is awarded the costs of the application
  3. 3.Judgment was slotted for 02.07.2026

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 27 (proviso)
  • Civil Procedure Act (Cap 21)Generally

Cases cited (3)

  • Shah v Mbogo and Another
    [1967] EA 116
  • Catherine Njeri Angote (suing as the Administrator of the Estate of Samuel Angote Ababu (Deceased) v Lucy Wangari Ngugi & another
    [2017] eKLR
  • Hussein Janmohamed & Sons -vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original civil suit jurisdiction; Civil Procedure Act (Cap 21), including sections 1A, 1B and 27

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, "Ethics and Anti-Corruption Commission v Luyali (Suing as Administrator of the Estate of Ezekiel Luyali Liyai) & 2 others; County Government of Mombasa & another (Interested Parties) (Environment and Land Case E049 of 2023) [2026] KEELC 1515 (KLR)", Case Analysis (2026). Not stated in the judgment (ELC, Mombasa; related suit ELC No. 425 of 2009 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1515/eng@2026-03-12

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