Gichinga v Ole Sayiore & another (Environment and Land Case 752 of 2017) [2026] KEELC 4111 (KLR)
The bottom line
#The Kajiado Environment and Land Court refused to reopen a 2022 judgment because the landowner knew about it in 2023 and waited until his land faced execution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether, notwithstanding the Applicant’s claims of non-service and the death of the original Plaintiff, there exists sufficient legal or equitable grounds to warrant the exercise of this Court’s discretion to set aside the judgment delivered on 20th April 2022
Key legal issues
#Whether non-service justified setting aside the ex parte judgment
No - actual notice through hand-delivery of the judgment at a 2023 meeting negated the claim of ignorance
The Court held that service rules exist to secure actual notice. The uncontroverted Replying Affidavit of Advocate Jonathan Omangi detailed a 2023 meeting at the Athi River Assistant Chief's office where the judgment was physically handed to the Applicant. Actual notice having been established, technical objections on mode of service fail, and the Applicant's inaction for over two years until execution disentitled him to discretion.
Whether the suit became a nullity on the death of the original Plaintiff
No - the administrator ad litem's grant regularized the proceedings
Charles Gatonye Gichinga died in June 2025; Serah Musiani obtained a limited grant ad litem on 26th August 2025 in Kajiado CMCC Ad Litem Cause No. E054 of 2025. That grant vests legal standing in the representative to prosecute the suit on behalf of the estate, so the Applicant's nullity argument was procedurally and substantively flawed.
Whether delay and third-party prejudice weighed against setting aside
Yes - inordinate, unexplained delay and crystallized rights of KETRACO precluded relief
The Applicant had notice since 2023 but acted only when execution was initiated in October 2025. The maxim vigilantibus non dormientibus jura subveniunt applied. KETRACO, a State Corporation with a statutory electricity transmission mandate, had relied on the finality of the 2022 judgment to commit to national infrastructure projects, and that prejudice outweighed the belated request.
Legal principles established
#- Once actual notice of proceedings is established, technical objections regarding the mode of service lose their potency
- A limited grant of letters of administration ad litem vests the representative with standing to sustain or defend litigation on behalf of the estate
- The court's discretion to set aside ex parte judgment cannot be exercised to assist a party guilty of inordinate and unexplained delay
Court orders
#- 1.The Notice of Motion dated 16th December 2022 is dismissed for want of merit
- 2.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the Environment and Land Court under the Civil Procedure Rules to set aside ex parte judgment; fair hearing rights under Article 50(1) of the Constitution of Kenya invoked by the Applicant
Relief refused
#Setting aside the judgment of 20th April 2022 and all consequential orders and re-opening the suit for hearing afresh, with leave to enter appearance and file a Defence out of time
Applicant had actual notice of the judgment since 2023, remained dormant until execution was initiated, and setting aside would prejudice KETRACO's crystallized third-party statutory mandate
Costs
dismissed for want of merit with costs to the Respondents
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 discretion of the court to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.
The discretion of the court… is a judicial discretion and must be exercised on sound principles. It cannot be exercised to assist a party who has been guilty of inordinate and unexplained delay.
An administrator ad litem is appointed for the specific purpose of the suit and has the capacity to prosecute or defend the action on behalf of the estate.
Accordingly, the Notice of Motion dated 16th December 2025 is hereby dismissed for want of merit with costs to the Respondents.
Issues in the judgment
#The heading describes the application as dated 16th December 2025 while paragraph 2 of the ruling refers to the same motion as dated 16th December 2025 in the introduction but the final order states a different year
Chronological anomalies: a Replying Affidavit is sworn on 3rd June 2026 and a Preliminary Objection filed 19th January 2026 within proceedings dating from 2017, while execution orders are dated 2nd October 2025 - dates appear internally inconsistent with the stated application date of 16th December 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichinga v Ole Sayiore & another (Environment and Land Case 752 of 2017) [2026] KEELC 4111 (KLR)", Case Analysis (2026). ELC/752/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4111/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.