Muli v Wariungi & another (Environment and Land Case E026 of 2020) [2026] KEELC 1782 (KLR)
The bottom line
#A Kenyan court dismissed an application to overturn ex parte orders because email service was properly proved, so the orders now stand.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was properly served with the application dated 2nd September 2024
Service was proper; email service was proved by an affidavit of service, filing receipt, hearing notice and an acknowledgement email dated 26th September 2024, and the Judge was satisfied before proceeding with the hearing
The Respondent filed an affidavit of service with a receipt confirming filing, a copy of the hearing notice, and an email acknowledging receipt dated 26th September 2024. The Judge who handled the 2nd September 2024 application was satisfied with the service and proceeded to hear it ex parte, delivering the ruling of 7th November 2024. The Applicant produced no evidence to displace this proof of service.
Whether the ex parte proceedings, ruling and orders should be set aside under Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules
The application to set aside was refused because service was proper and the proceedings stand
Under Order 12 rule 7 the court may set aside a judgment or order on such terms as may be just, and Order 51 rule 15 permits setting aside ex parte orders where service was improper or non-appearance was due to sufficient cause. Since the court found service on the Applicant's known address by email was properly proved, neither ground was established and the discretion was not exercised in the Applicant's favour.
Legal principles established
#- Setting aside an ex parte order is discretionary; the court must be satisfied either that the respondent was not properly served or that failure to appear was due to sufficient cause
- The discretion to set aside exists to avoid injustice and hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed the cause of justice
Court orders
#- 1.Application dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 50 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muli v Wariungi & another (Environment and Land Case E026 of 2020) [2026] KEELC 1782 (KLR)", Case Analysis (2026). (Notice of Motion dated 13th August 2025 in the suit; not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1782/eng@2026-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.