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ELCPartially Allowed· [2026] KEELC 4101 (KLR)

Crystal Investments Ltd v Elme & 3 others (Environment and Land Case 110 of 2019) [2026] KEELC 4101 (KLR)

Environment and Land Court
12 June 2026
TMT. MURIGI
3,350 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a two-year-old default judgment because the defendant's defence raised real land-title questions, but ordered Kshs 200,000 in thrown away costs.

What this practically means

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Executive summary

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The 1st Defendant applied, by amended Notice of Motion dated 3rd March 2026 under Order 9 Rule 9, Order 10 Rule 11 and related provisions of the Civil Procedure Rules, for leave for the firm of Oscar Otieno and Co Advocates to come on record after judgment, and for the setting aside of the judgment and decree of 8th February 2024, together with leave to defend. The applicant contended he was never served with summons or pleadings, learned of the suit only on 17th February 2026 when the Plaintiff executed the judgment by evicting him, and that his draft defence raised triable issues including an alleged National Land Commission determination in his favour and non-disclosure thereof by the Plaintiff. The Plaintiff opposed, asserting service had been effected by substituted service on multiple occasions pursuant to court orders, that the judgment was regular, that the application was brought after over two years' inordinate delay, and that the draft defence was a sham. The court framed two issues: whether the incoming advocates could come on record, and whether the judgment should be set aside. It found the Order 9 Rule 9 requirements satisfied. On service, it held the substituted service was properly effected and the judgment was regular, settable aside only in the court's discretion. Weighing the two-year delay against the triable issues raised in the draft defence concerning the root of the Plaintiff's title and alleged fraud, the court allowed the application, set aside the judgment and decree, deemed the draft defence on record, and imposed thrown away costs of Kshs 200,000/- payable within 14 days, failing which the setting-aside orders would lapse, and awarded the Plaintiff the costs of the application. Ruling delivered on 12th June 2026 by T. Murigi, J.

Key legal issues

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01

Whether incoming advocates may come on record after judgment without consent

Holding

Order 9 Rule 9 requirements were satisfied; the firm of Oscar Otieno and Co Advocates was permitted to come on record.

Reasoning

Order 9 Rule 9 requires an order of the court or consent where there is a change of advocate after judgment. The applicant filed an affidavit of service confirming service of the application on the Plaintiff's Counsel and other parties. The court found the requirements satisfied and allowed the firm on record, applying the protective purpose of the rule.

p. 5
02

Whether service of summons and pleadings was effected on the 1st Defendant

Holding

The court was satisfied the 1st Defendant was served by substituted service on more than one occasion; the judgment was regular.

Reasoning

Pursuant to court orders of 7th May 2019 and 12th April 2023, the plaint, amended plaint and hearing notice were served by advertisement in a newspaper of wide circulation and upon Ondabu & Company Advocates. Affidavits of service confirmed publication, yet the Defendant never entered appearance. The judgment was therefore regular and could only be set aside in the court's discretion.

p. 6
03

Whether the judgment of 8th February 2024 should be set aside despite delay

Holding

Yes. Although the delay of about two years weighed against the applicant, the draft defence disclosed triable issues on the root of the Plaintiff's title, justifying setting aside on terms.

Reasoning

The discretion under Order 10 Rule 11 is wide and is exercised to do justice between the parties. Delay of such magnitude normally weighs against the applicant but is not decisive. The draft defence raised fundamental issues on the root of the Plaintiff's title, including alleged suppression of a National Land Commission determination and competing registered interests. Issues of fraud affecting registered titles require a full hearing, so the defence disclosed triable issues.

p. 7

Legal principles established

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  • A delay in applying to set aside a judgment is not in itself decisive but one factor to be balanced with others.
  • Where a regular default judgment has been entered, the court retains a discretion to set it aside if the draft defence raises triable issues.
  • Issues of fraud affecting the validity of registered titles must be resolved through a full hearing on the merits.

Court orders

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  1. 1.The firm of Oscar Otieno and Co, Advocates, is hereby allowed to come on record as Advocates for the 1st Defendant.
  2. 2.The Notice of Appointment of an Advocate annexed to the application is deemed as duly filed and served.
  3. 3.The Judgment issued on 8th February, 2024 and its Decree and orders is hereby set aside.
  4. 4.The Defendant/Applicant shall pay to the Plaintiff thrown away costs of Kshs 200,000/- within 14 days from the date hereof.
  5. 5.In default of payment of thrown away costs, the orders setting aside the judgment shall be vacated and/or lapse automatically.
  6. 6.The 1st Defendant's draft defence annexed to its application is deemed to be properly on record upon payment of the requisite filing fees.
  7. 7.The Plaintiff is awarded the costs of the application.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 21 Rule 6
  • Civil Procedure RulesOrder 5 Rule 5
  • Constitution of Kenya 2010Article 50(1)

Cases cited (9)

  • Rose Njuki King'au & Another v Shaba Trustees Limited & Another
    [2018] eKLR
  • James Kanyita Nderitu & Another v Marios Philota Ghikas & Another
    [2016] eKLR
  • Kenya Power & Lighting Co. Ltd v Abdulhakim Abdulla Mohamed & Another
    [2017] eKLR
  • S.K. Tarwadi v Veronica Muehlemann
    [2019] eKLR
  • Philip Kiptoo Chemwoto and Mumias Sugar Company Ltd v Augustine Kubed
    (1982-1988) KAR
  • Patel vs East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • CMC Holdings Ltd v. Nzioki
    [2004] KLR 173
  • Tree Shade Motors Limited v D.T. Dobie & Company (Kenya) Limited & Another
    [1998] eKLR
  • Mbogo & Another v Shah
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1, Order 9 Rule 9, Order 10 Rule 11 and Order 22 Rule 22 of the Civil Procedure Rules

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, "Crystal Investments Ltd v Elme & 3 others (Environment and Land Case 110 of 2019) [2026] KEELC 4101 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4101/eng@2026-06-12

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