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ELCDismissedMemorandum of Appeal dated 25.10.2022· [2026] KEELC 2155 (KLR)

Wanjiru & 3 others v Mbugua t/a Spear Super Market (Environment and Land Appeal E021 of 2022) [2026] KEELC 2155 (KLR)

Environment and Land Court
16 April 2026
LMLUCY N. MBUGUA
1,094 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that tenants who ignore tribunal hearing dates lose their chance to defend eviction cases, even after claiming they weren't properly served.

What this practically means

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Executive summary

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The appellants, tenants of the respondent landlord on Plot No. Block 6585/460 in Nyahururu Town, were issued with notices dated 6th March 2020 to vacate the premises. Several references were filed before the Business Premises Rent Tribunal, including one by the landlord seeking orders that the tenants vacate to allow renovations pursuant to a public health directive. The matter was heard ex-parte on 23rd March 2022, resulting in a judgment dated 12th April 2022 in favour of the landlord. The tenants' application dated 5th May 2022 to set aside that judgment, founded on an allegation of non-service and Article 50(1) of the Constitution, was dismissed on 21st October 2022, prompting this appeal by memorandum dated 25th October 2022. The appeal was canvassed by written submissions. Lucy N. Mbugua, Judge, directed herself on the duty of a first appellate court to re-evaluate the evidence, citing Abok James Odera v Machira. Examining the record, the court found that the matter had failed to proceed on 25th January 2022 only because of non-service, after which fresh service was ordered; the tribunal chairman had expressly found in his ruling that an affidavit of service sworn on 16th March 2022 clearly detailed the service of the hearing notice on the tenants' advocates. The court rejected the argument that 23rd March 2022 was a mere mention, observing that the appellants ought to have attended to clarify. Relying on Mwangi Gachiengu v Mwaura Githuku, the court held that the tenants had gone to sleep on their case and taken a casual attitude, and it was too late for another chance. The appeal was dismissed with costs to the respondents on 16th April 2026.

Key legal issues

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01

Whether the appellants were denied a fair hearing such that the ex-parte judgment and the ruling refusing to set it aside should be set aside

Holding

The appeal fails; the tribunal properly found that the appellants' advocates were served with the hearing notice, and the ex-parte proceedings of 23.3.2022 were lawful

Reasoning

The record showed that the matter did not proceed on 25.1.2022 for lack of service, and the tribunal ordered fresh service and a mention. The tribunal chairman's ruling of 21.10.2022 found that an affidavit of service sworn on 16th March 2022 clearly detailed the manner, style and place of service of the hearing notice on the tenants' advocates. The appellants did not attend even to clarify whether the date was for mention or hearing, and did not demonstrate diligence in prosecuting their references.

p. 2
02

Whether the matter slated for 23.3.2022 was a mention and not a hearing date

Holding

The court found the date was properly for hearing; had the appellants genuinely believed it was only a mention, they should have attended to clarify

Reasoning

The only reason the matter had not proceeded on 25.1.2022 was non-service upon the tenants, and after fresh service was ordered, the matter was listed for 23.3.2022 and proceeded ex-parte on that date. The court held that if the appellants believed the date was a mention rather than a hearing, they ought to have appeared in court to clarify that fact. Their failure to attend supported the conclusion that they were indolent.

p. 2

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence and determine whether the conclusions reached by the tribunal should stand
  • A litigant who goes to sleep after filing a suit cannot blame his advocate for failing to update him on the position of the matter

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1) (right to fair trial)

Cases cited (4)

  • Richard Nchapi Leiyangu v IEBC & 2 Others
    Civil Appeal No. 18 of 2013
  • Obiero v Severin & Another
    (Civil Appeal No. E201 OF 2023) (2025) KEHC 2724 (KLR) (13 March 2025)
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Mwangi Gachiengu & 2 Others v Mwaura Githuku & Another
    (2019) eKLR
On appeal from
Business Premises Rent Restrictive Tribunal
Reference No. 123 of 2020
Jurisdiction invoked
First appellate jurisdiction over a decision of the Business Premises Rent Tribunal (the judgment characterises the matter as 'a first appeal')

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, "Wanjiru & 3 others v Mbugua t/a Spear Super Market (Environment and Land Appeal E021 of 2022) [2026] KEELC 2155 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 25.10.2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2155/eng@2026-04-16

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