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ELCOtherEnvironment and Land Case 92 of 2013· [2026] KEELC 2529 (KLR)

Ochunga v Odaba & 5 others (Environment and Land Case 92 of 2013) (23 April 2026) (Directions) [2026] KEELC 2529 (KLR)

Environment and Land Court
23 April 2026
752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Busia land court judge sent a bid to overturn a cancelled-titles judgment back to the original trial judge, saying only he could reconsider it.

What this practically means

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Executive summary

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This is a directions ruling by Waithaka J in a long-running Environment and Land Court suit at Busia. The four interested parties filed a notice of motion dated 10th January 2026 seeking to set aside the judgment delivered on 31st October 2023, to be joined to the suit, and to have the suit heard afresh. They complained that the court cancelled the titles to their parcels of land without affording them a hearing, leaving them at risk of eviction. The defendant, Dixon Odaba, acknowledged the interested parties held parcels affected by the judgment but opposed the application, contending that they had obtained their interests when a court order restricted dealings with the suit properties, rendering the dealings null and void; he asserted that only Adam Khamis Jarden and Jackson Moses Emusiko would be affected by the eviction orders, accusing them of colluding with the plaintiff, and argued there was inordinate delay and that the applicants' remedy lay in damages from the plaintiff. Waithaka J held that the application raised a weighty issue of law touching on the right to be heard before adverse orders are made against a party, a right conferred by Article 47 of the Constitution. Noting the pleadings showed the defendant knew of the subdivisions in 2017 yet did not join the beneficiaries, the judge nevertheless held she had no power to set aside a decision of a court of concurrent jurisdiction determined on the merits, and directed that the file be placed before Olao J, who heard the suit, for consideration and appropriate directions. No costs order was made.

Key legal issues

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01

Proper forum for determination of an application to set aside a judgment after transfer of a case or reassignment

Holding

The application raising a weighty issue of law on the right to be heard should be considered by the judge who heard the suit and delivered the impugned judgment

Reasoning

Waithaka J considered the notice of motion dated 10th January 2026 seeking to set aside the judgment of 31st October 2023, joinder and a fresh hearing. She acknowledged the weighty Article 47 fair-hearing issue raised by the interested parties, but held she had no power to set aside a decision of a court of concurrent jurisdiction determined on the merits. Since Olao J heard the suit, the file was referred to him for consideration and appropriate directions.

p. 2
02

Right to be heard before adverse orders

Holding

An application raising the question whether adverse orders were made against parties who were not heard is weighty and merits full consideration

Reasoning

The interested parties complained that their titles were cancelled without being afforded a hearing and that they risked eviction. The court noted the application raised a weighty issue of law touching on the right to be heard before adverse orders are made against a party to a suit or a necessary party, a right conferred by Article 47 of the Constitution, warranting consideration by the judge seized of the suit.

p. 2

Legal principles established

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  • The right to be heard before any adverse decision is made against a party is conferred by Article 47 of the Constitution
  • A judge has no power to set aside a decision of a court of concurrent jurisdiction on a matter heard and determined on its merits

Court orders

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  1. 1.That the file be placed before Olao J, who heard the suit and is better placed to deal with the issue of law raised in the application, for consideration and appropriate directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a suit pending before it; directions on a notice of motion dated 10th January 2026 filed in that suit

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, "Ochunga v Odaba & 5 others (Environment and Land Case 92 of 2013)  (23 April 2026) (Directions) [2026] KEELC 2529 (KLR)", Case Analysis (2026). Environment and Land Case 92 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2529/eng@2026-04-23

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