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ELCDismissed(Notice of Motion dated 13th August 2025 in the suit; not stated in the judgment)· [2026] KEELC 1782 (KLR)

Muli v Wariungi & another (Environment and Land Case E026 of 2020) [2026] KEELC 1782 (KLR)

Environment and Land Court (as delivered at Machakos; the judgment does not name the court expressly)
24 March 2026
1,032 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st Defendant/Applicant, Nyangayo Vincent O., brought a Notice of Motion dated 13th August 2025 under Order 50 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act seeking stay of a Notice to Show Cause dated 21st January 2025, stay of the ruling and order delivered by Lady Justice Christine Ochieng on 7th November 2024 and dated 14th November 2024, setting aside of the ex parte proceedings conducted from 2nd September 2024, and leave to respond to the chamber summons dated 2nd September 2024. He alleged he was never served with the application of 2nd September 2024, that service was purportedly effected at his advocate's without proof, and that the ex parte proceedings violated his right to be heard and the rules of natural justice, exposing him to attachment of property and arrest. The Respondent countered that the Applicant was properly served at his known address, filing an affidavit of service with a receipt, a hearing notice, and an email acknowledging receipt dated 26th September 2024. Matheka J restated the law on setting aside ex parte orders under Order 12 rule 7 and Order 51 rule 15 of the Civil Procedure Rules, citing Esther Wamaitha Njihia v Safaricom, Patel v EA Cargo Handling, Shah v Mbogo and Sebei District Administration v Gasyali. The court found service was proper and that the ex parte proceedings and the ruling of 7th November 2024 stand. The application was dismissed with costs to the Respondent on 24th March 2026 at Machakos.

Key legal issues

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01

Whether the Applicant was properly served with the application dated 2nd September 2024

Holding

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

Reasoning

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.

p. 3
02

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

Holding

The application to set aside was refused because service was proper and the proceedings stand

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Application dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 50
  • Civil Procedure Rules, 2010Order 12, rule 7
  • Civil Procedure Rules, 2010Order 51, rule 15

Cases cited (5)

  • Esther Wamaitha Njihia & two others vs Safaricom Ltd
    (2014) eKLR
  • Patel v E.A. Cargo Handling Services Ltd
  • Shah v Mbogo
  • Sebei District Administration v Gasyali
  • Shah vs Mbogo & Another
    (1967) EA 116
Jurisdiction invoked
Order 50 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction)

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, "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.