Makau v Mbira (Originating Summons 185 of 2018) [2026] KEELC 4627 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default land judgment, ruling that service by newspaper and post wasn't effective enough to deny the defendant a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Effectiveness of substituted service
Although service by registered post and newspaper advertisement was effected pursuant to court order, its effectiveness was doubtful given the inconspicuous advertisement, the defendant's residence in Nairobi and Covid-19 movement restrictions; sufficient cause to set aside the judgment was shown.
The court held that substituted service must be assessed in context, not merely on formal compliance. Article 50(1) guarantees fair hearing and the right not to be condemned unheard is a cardinal principle of natural justice. The inconspicuous advertisement, the defendant's residence outside Mombasa and pandemic restrictions meant service may not have effectively notified him, warranting setting aside the judgment under Order 10 Rule 11.
Discretion to set aside ex parte judgment
The defendant explained his absence as excusable mistake rather than deliberate evasion, entitling him to exercise of the court's discretion under Order 10 Rule 11 to set aside the judgment and defend the suit.
Guided by Shah v Mbogo, Chemwolo v Kubede, CMC Holdings v Nzioki and James Kanyiita Nderitu, the court distinguished regular from irregular default judgments, held the discretion exists to avoid injustice from excusable mistake, found the defendant's conduct inadvertent rather than evasive, and held prejudice to the plaintiff could be compensated by costs.
Adverse possession
Whether the plaintiff acquired ownership by adverse possession is a triable issue: conflicting photographic evidence of vacancy in 2019 against claimed 25-year occupation cannot be resolved summarily.
Sections 7 and 38 of the Limitation of Actions Act and the principles in Kweyu v Omuto and Mbira v Gachuhi require actual, open, continuous, exclusive and adverse possession for twelve years. The defendant's photographs showing vacancy as late as March 2019 and permissive use by a neighbour cast doubt on the plaintiff's claim; the contradiction requires full hearing with oral testimony.
Allegations of fraud
The fraud allegations are sustainable as triable issues; fraud must be specifically pleaded and strictly proved and cannot be determined at the interlocutory stage.
Under Section 26(1) of the Land Registration Act a title is indefeasible except where acquired by fraud or misrepresentation or illegally, unprocedurally or through a corrupt scheme. Citing Arthi Highway Developers and Samuel Kamene, the court held that if proven, misrepresentation of occupation would impeach the title, but strict proof through oral testimony is required.
Legal principles established
#- The substratum of service is not merely formal compliance but whether it was reasonably calculated to bring the proceedings to the attention of the defendant.
- A default judgment entered against a defendant not properly served is irregular and must be set aside ex debito justitiae; a regular default judgment may be set aside in the court's discretion under Order 10 Rule 11.
Court orders
#- 1.The Notice of Motion dated 2nd December, 2022 is found to have merit and is allowed
- 2.The Judgment delivered on 23rd April, 2020 in favour of the Plaintiff/Respondent is set aside pursuant to Order 10 Rule 11 of the Civil Procedure Rules, 2010
- 3.Sufficient cause demonstrated by the Defendant/Applicant constitutes excusable mistake and inadvertence
- 4.The Defendant has raised triable issues on adverse possession and fraud to be determined at a full hearing
- 5.Defendant granted leave to file and serve his Statement of Defence and/or Counter-Claim within twenty-one (21) days, and the matter to proceed to hearing on the merits
- 6.Mention on 5th October, 2026 for compliance and further directions before Justice Olola, ELC, Mombasa
- 7.Costs of the application shall be in the cause
- Jurisdiction invoked
- Environment & Land Court Act, No. 19 of 2011; Civil Procedure Act, Cap. 21 (Order 10 Rule 11, Order 12 Rule 7, Section 3A)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau v Mbira (Originating Summons 185 of 2018) [2026] KEELC 4627 (KLR)", Case Analysis (2026). ELC No. 185 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4627/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.