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ELCAllowedNot stated in the judgment as provided· [2026] KEELC 1758 (KLR)

Waithaka v Maina & 2 others (Environment and Land Case E134 of 2023) [2026] KEELC 1758 (KLR)

Environment and Land Court
24 March 2026
COChristine Ochieng
2,320 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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Kenya's Environment and Land Court set aside an ex parte land judgment because it was entered after a defendant died without his estate's legal representative being substituted or heard.

What this practically means

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Executive summary

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The 2nd Defendant moved the court by Notice of Motion dated 30th July 2025 seeking to set aside an ex parte judgment entered on 29th May 2025, together with all consequential orders and any execution of the resultant decree, and leave to file her statement of defence out of time. She explained that the 1st Defendant, her late husband, was gravely ill with cancer throughout the suit and died in India on 29th March 2025 without substitution; that she believed the matter would be withdrawn after a meeting with Embakasi Ranching Company Limited officials; and that she was never served with hearing notices. The Plaintiff opposed, asserting proper service by substituted means (registered post and newspaper advertisement), that the decree had already been executed and fresh titles issued, and that the draft defence disclosed no triable issues. The court framed a single issue: whether the ex parte judgment should be set aside and leave to defend granted. Distinguishing regular from irregular default judgments per James Kanyiita Nderitu, the court held that although substituted service had been effected, the judgment was irregular because it was delivered after the 1st Defendant's death without his legal representative being substituted or heard, and that executing the decree against a deceased person's estate with no succession proceedings shown was improper. The draft defence was found to raise triable issues. The application was allowed: the ex parte judgment and consequential orders were set aside, the 2nd Defendant granted fourteen days to file defence, the Plaintiff fourteen days to reply if need be, with costs in the cause.

Key legal issues

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01

Whether the ex parte judgment of 29th May 2025 was regular or irregular

Holding

The judgment was irregular because it was delivered after the death of the 1st Defendant without substitution of his legal representative; setting aside is warranted and the draft defence raises triable issues.

Reasoning

The court noted substituted service had been allowed and the matter proceeded ex parte, but judgment was delivered on 29th May 2025, after the 1st Defendant died on 29th March 2025, without any formal substitution. Relying on CKM v JMM, natural justice required the estate be heard through its legal representative. Execution of the decree against a deceased person's estate with no succession proceedings shown was improper. The draft defence raised triable issues, providing sufficient cause to set aside.

p. 5
02

Whether the 2nd Defendant has a triable defence warranting leave to defend

Holding

Yes; the draft defence raises triable issues including fraud and misrepresentation against the Plaintiff.

Reasoning

The 2nd Defendant annexed a draft statement of defence alleging fraud and misrepresentation against the Plaintiff and asserting joint acquisition of the suit properties from Embakasi Ranching Company Limited for valuable consideration. On perusal, the court found the draft defence raised triable issues, which together with the irregularity of the judgment constituted sufficient cause to set it aside and grant leave to file defence.

p. 5

Legal principles established

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  • A judgment entered against a deceased party before substitution of his legal representative is irregular and must be set aside; the estate must be heard through its legal representative before a decision is rendered.

Court orders

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  1. 1.The ex-parte judgement entered on 29th May, 2025 against the 2nd Defendant and all consequential orders and proceedings and any intended execution of the resultant decree against the 2nd Defendant be and is hereby set aside
  2. 2.The 2nd Defendant is granted leave of fourteen (14) days to file and serve her statement of defence
  3. 3.Upon service, the Plaintiff to file and serve a reply to defence in fourteen (14) days if need be
  4. 4.Costs in the cause
Jurisdiction invoked
Inherent jurisdiction and discretion under Order 10 rule 11 of the Civil Procedure Rules to set aside default judgment

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, "Waithaka v Maina & 2 others (Environment and Land Case E134 of 2023) [2026] KEELC 1758 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1758/eng@2026-03-24

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