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ELCPartially AllowedELC Case of 2016 (consolidated with ELC No. 325 of 2019)· [2026] KEELC 2404 (KLR)

Abdullahi & another v Mohamed & 3 others (Environment and Land Case 725 of 2016 & 325 of 2019 (Consolidated)) [2026] KEELC 2404 (KLR)

Environment and Land Court
24 April 2026
3,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court set aside a 2024 land judgment because the defendant never received hearing notices, allowing fraud claims over title to be fully tried.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Hon. T. Murigi J) determines two applications arising after judgment was entered in this land dispute on 20th March 2024 by Hon. E. K. Wabwoto J. The 1st Defendant sought to set aside that judgment, alleging he lost contact with his former advocates and was never served with hearing notices for the hearing that produced the judgment; he sought leave to file a defence and counterclaim asserting proprietorship of the suit property and impugning the Plaintiff's title on grounds of fraud. The Plaintiff opposed, asserting substituted service of summons through the Standard Newspaper, the 1st Defendant's earlier participation through counsel, and his conduct — including a purported transfer of the property and continued construction — as showing collusion and abuse of process. The 2nd Defendant, in a separate application, sought to strike out paragraphs of the Plaintiff's replying affidavit asserting a marital relationship between her and the 1st Defendant, producing a marriage certificate showing she is married to a third party. The court held that the marital-relationship averments were unsubstantiated and contrary to Order 19 Rule 3, and ordered only those references expunged, declining to strike out the paragraphs in their entirety. On the setting-aside application, the court found no evidence on the record of service of subsequent hearing notices on the 1st Defendant or his advocates, an omission striking at procedural fairness, and found the draft defence raised weighty triable issues on fraud and competing title protected by Article 50. The judgment of 20th March 2024 was set aside, leave to file a defence and counterclaim granted within 7 days, on condition of throw-away costs of Kshs 200,000, with costs of the application to the Plaintiff.

Key legal issues

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01

Whether the averments of a marital relationship between the 1st and 2nd Defendants should be struck out

Holding

The averments were struck out (expunged) as unsubstantiated and contrary to Order 19 Rule 3, but the paragraphs were not struck out in their entirety as they contained other material averments

Reasoning

The plaintiff deposed that her affidavit was based on her own knowledge but did not disclose the basis for asserting a marital relationship and tendered no supporting evidence. The 2nd Defendant produced a marriage certificate showing she is married to a third party. The court applied Order 19 Rule 6 empowering it to strike out scandalous, irrelevant or oppressive matter, while preserving the other relevant averments in the same paragraphs.

p. 6
02

Whether the judgment of 20th March 2024 should be set aside

Holding

The judgment was set aside; the 1st Defendant was granted leave to file a defence and counterclaim on terms including throw-away costs

Reasoning

The court applied Order 10 Rule 11 and the Patel and Shah v Mbogo principles. Although the 1st Defendant had earlier participated, the record showed no service of subsequent hearing notices on him or his advocates before the hearing, which struck at procedural fairness. The draft defence raised triable issues of fraud and competing title, Article 50 guaranteed a fair hearing, and any prejudice to the plaintiff was compensable in costs.

p. 8
03

Whether the judgment was regular or irregular, and the consequences of that classification

Holding

The court distinguished regular from irregular default judgments per James Kanyita Nderitu but declined to treat the judgment as a nullity set aside ex debito justiciae since the defendant had entered appearance and initially participated

Reasoning

Counsel for the 1st Defendant urged that the judgment was irregular and should be set aside as of right. The court noted it was not disputed the 1st Defendant knew of the suit and had participated, including filing an application in 2019; the real question was whether subsequent processes were served. Finding no evidence of service of hearing notices, the court set the judgment aside, essentially on discretionary and fair-hearing grounds rather than as a nullity.

p. 7

Legal principles established

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  • A judgment entered without service of hearing notices on a defendant or his advocates on record offends procedural fairness and is liable to be set aside
  • Allegations of fraud coupled with competing claims to title raise triable issues that cannot be disposed of summarily and warrant a full hearing
  • Affidavit averments that a deponent cannot prove from own knowledge and which are unsubstantiated contravene Order 19 Rule 3 and may be struck out under Order 19 Rule 6

Court orders

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  1. 1.The judgment delivered on 20th March 2024 by Hon. E. K. Wabwoto J is hereby set aside
  2. 2.The 1st Defendant is granted 7 days to file and serve his statement of defence and counterclaim
  3. 3.The 1st Defendant shall pay to the Plaintiff throw-away costs assessed at Kshs 200,000 within 14 days, and in default, the orders herein shall lapse
  4. 4.The Plaintiff is awarded costs of the application
  5. 5.Parties are directed to comply with Order 11 within 14 days from the date hereof
  6. 6.All references asserting a marital relationship between the 1st and 2nd Defendants in the Plaintiff's Replying Affidavit dated 8th December 2025 be expunged from the record

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure Rules, 2010Order 1 Rules 1 and 17
  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure Rules, 2010Order 19 Rule 3
  • Civil Procedure Rules, 2010Order 19 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Constitution of Kenya, 2010Article 50

Cases cited (15)

  • Njoroge v Kiarie
    [1988] eKLR
  • In re Estate of JKM (Deceased)
    [2020] KEHC 6842 (KLR)
  • Gulf Fabricators v County Government of Siaya
    [2020] eKLR
  • Ali Bin Khamis v Salim Khamis Korobe & 2 others
    [1956] 23 EACA 195
  • Republic v County Executive Committee Member (Lands, Urban Development, Environment and Climate Change, Government of Makueni County) & another; Highway Holdings Ltd (Ex parte Applicant)
    [2023] KEELC 15755 (KLR)
  • Sankale Ole Kantai t/a Kantai & Co. Advocates v Housing Finance Company of Kenya Ltd
    [2013] eKLR
  • Crescent Construction Co Ltd v Delphis Bank Ltd
    [2007] eKLR
  • Patel vs East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Shah v Mbogo & Another
    (1967) E.A 116
  • James Kanyita Nderitu v Maries Philotas Ghika & Another
    [2016] eKLR
  • Mbogo & Another v Shah
  • Chemwolo & Another v Kubende
    [1986] KLR 492
  • CMC Holdings v Nzioki
    [2004] 1 KLR 173
  • Onyango Oloo v Attorney General
    [1986 – 1989] EA 456
  • Sangram Singh v Election Tribunal, Kotch
    AIR 1955 SC 664
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Orders 1, 10, 19 and 51 of the Civil Procedure Rules, 2010

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, "Abdullahi & another v Mohamed & 3 others (Environment and Land Case 725 of 2016 & 325 of 2019 (Consolidated)) [2026] KEELC 2404 (KLR)", Case Analysis (2026). ELC Case of 2016 (consolidated with ELC No. 325 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2404/eng@2026-04-24

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