Ng’etich & another v National Government Constituency Development Fund Board & 2 others (Environment and Land Case E034 of 2025) [2026] KEELC 3652 (KLR)
The bottom line
#A Kenyan court set aside orders made against a company that was never properly served, ruling that an unproven email is not valid service of court documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 3rd defendant was duly served with the plaintiffs' originating pleadings and Notice of Motion dated 25th November 2025 before the orders of 27th January 2026 were issued
- 2.Whether the 3rd defendant has established entitlement to the orders sought in its application dated 19th May 2026, including setting aside the orders of 27th January 2026
- 3.Whether the prayer for release and payment of certified sums under the contract is available to the 3rd defendant at this stage of the suit
Key legal issues
#Whether service of the plaintiffs' application on the 3rd defendant was valid
Service was invalid. Physical service failed and electronic service by ordinary email without an Electronic Delivery Receipt did not comply with Order 5 Rule 22B; the 3rd defendant was denied its right to be heard
The court examined Order 5 Rules 3 and 22B of the Civil Procedure Rules and noted that a process server cannot simply send an email but must secure an Electronic Delivery Receipt to prove receipt. The process server's affidavit showed physical service was refused and email was sent to a gmail address without proof of delivery, falling short of the prescribed modes of service on a corporation.
Whether the orders of 27th January 2026 issued without service on the 3rd defendant should be set aside
Yes; the orders were reviewed, set aside and/or discharged because the 3rd defendant was denied its fundamental right to a fair hearing under Article 50(1)
Relying on Article 50(1) and the audi alteram partem principle, and on James Kanyiita Nderitu and Chemwolo cases, the court held the right to be heard is fundamental and orders made in breach of it, as here where the applicant was not properly served, should be set aside ex debito justitiae in the ends of justice.
Whether the suit itself should be struck out for failure to extract and serve summons within thirty days
Not struck out; the suit is not hopeless and the parties retain the right to fair trial
Although the court acknowledged Muigai, Arboretum Plaza and Cheruiyot holding that failure to extract and serve summons is a fundamental jurisdictional lapse that can lead to striking out, it applied D.T. Dobie and declined to throw out the suit, finding it not clearly hopeless and salvageable, in line with Articles 25(c) and 50(1).
Whether the 3rd defendant was entitled to payment of certified sums under its contract at this interlocutory stage
No; the prayer was declined as premature and a misnomer at this stage of the suit
The court found the prayer for release and payment of sums due under the contract with Konza Technopolis Development Authority to be farfetched in the context of an interlocutory application, since it would pre-empt the substantive fair trial of the matter, and declined it citing Chemwolo and Nderitu cases.
Legal principles established
#- A defendant who has not been duly served with valid summons is entitled to disregard proceedings even if aware of them; appearance without valid service is of no legal effect
- Service on a corporation must comply with Order 5 Rule 3, and electronic service requires proof of receipt; failure to effect proper service means the court's jurisdiction is not invoked
- The right to be heard is fundamental and orders made without proper service may be set aside ex debito justitiae
Court orders
#- 1.The Orders given on the 27th day of January 2026 are reviewed, set aside and/or discharged on the ground that the 3rd defendant was not properly served and was thereby denied its fundamental right to be heard
- 2.The 3rd defendant is granted leave to file its Response to the Plaintiffs' Notice of Motion dated 25th November 2025 within fourteen days from the date of the judgment
- 3.The Plaintiffs' Notice of Motion dated 25th November 2025 to be heard afresh with the full participation of the 3rd Defendant
- 4.Parties to maintain the status quo obtaining over the suit property LR No. 7830/228 Nandi Hills Town as at 27th January 2026 pending inter-partes hearing and determination of the application
- 5.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25(c), 50(1) and 159(2)(d) of the Constitution; sections 3 and 13(7) of the Environment and Land Court Act 2015; sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21)
Relief refused
#Release and payment to the 3rd defendant of all certified sums due under Contract Agreement No. KoTDA/JITUMEHUBSCOE/296/2023-2024 (prayer 6)
Premature at this stage of the suit; it would pre-empt the fair trial of the substantive dispute
Immediate invitation of the court to decline or discharge injunctive orders against the 3rd defendant on the merits
Not granted on the merits at this stage; the plaintiffs' application is to be heard afresh with the 3rd defendant's participation and status quo maintained
Costs
Costs of the application be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Orders given on the 27th day of January 2026 herein, are reviewed, set aside and/or discharged for the reasons that the 3rd defendant was not properly served with the plaintifis' originating pleadings, the Notice of Motion dated 25th November 2025, any supporting afidavits or any Court process prior to the issuance of the said Orders, and was thereby denied its fundamental right to be heard and for the ends of justice.
The 3rd defendant is granted leave to file its Response to the Plaintifis' Notice of Motion dated 25th November 2025 , within the next fourteen days from this date.
a process server cannot simply send an email to the address of a party to be served but must secure an Electronic Delivery Receipt to prove that the party received the message. Electronic service is an alternative to physical personal service.
unless prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked.
prayer number 6 for release and payment of sums due and owed under contract agreement is a misnomer in the application in view of the right to fair trial
Costs of the application be in the cause.
Issues in the judgment
#The judgment refers inconsistently to the plaintiffs' Notice of Motion, dating it 25th November 2025 in some passages and 26th November 2025 in the final orders
The applicants' supporting affidavit is described at one point as belonging to the '3rd respondent' rather than the 3rd defendant/applicant
The judgment does not state the case number of the suit in which the application was brought, nor the names of the parties on the record, making full identification of the matter and the parties impossible from the judgment alone
The excerpt of Order 5 Rule 1(5) and (6) set out in the judgment includes a passage on rules and timelines that does not correspond to the text of the rule quoted, suggesting an editing or transcription error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’etich & another v National Government Constituency Development Fund Board & 2 others (Environment and Land Case E034 of 2025) [2026] KEELC 3652 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3652/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.