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ELCPartially AllowedELCL CASE NO. 62 OF 2023· [2026] KEELC 4907 (KLR)

Ng'ang'a & another v Ndeti & another (Environment and Land Case E062 of 2023) [2026] KEELC 4907 (KLR)

Environment and Land Court
28 July 2026
1,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos cancelled a land judgment won without the defendants present, because their defence raised serious ownership questions.

What this practically means

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Executive summary

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The applicants/defendants applied under Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Articles 50 and 159(2)(d) of the Constitution to set aside an ex-parte judgment delivered on 24th June 2025 in ELC Case No. 62 of 2023, together with consequential orders, and for leave to defend. They contended they were never served with summons or pleadings and only learned of the judgment when served with a decree dated 2nd July 2025. On the merits they asserted that the respondents' title, L.R No. 337/1000 I.R 226329, was cancelled in 2002 and fraudulently resurrected in November 2020, with the valid title being L.R No. 337/2293 I.R 152284 registered to their brother, Peter Nzuki Ndeti; they also noted inconsistencies in the measurements of the resurrected parcel. The court perused the record, noting return of service on 30th January 2024 and a subsequent service of hearing notice on 3rd December 2024, and that the matter proceeded to formal proof in their absence. Relying on Mohamed & Another vs Shoka, Patel vs Cargo Handling Services Ltd, Shah vs Mbogo and Chemwolo & Another vs Kubende, the court exercised its discretion in favour of setting aside the default judgment because the defence raised triable issues as to ownership of the suit land. The ex-parte proceedings and judgment were set aside in their entirety, the defendants were granted leave to defend out of time, the amended defence and counterclaim were to be filed and served within 14 days, and costs were reserved to the cause.

Key legal issues

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01

Whether the ex-parte judgment should be set aside for want of service

Holding

Yes. Despite return of service on record, the applicants asserted they were never served, and the defence raised triable issues as to ownership of the suit land; the court set aside the ex-parte proceedings and judgment in their entirety.

Reasoning

The court reviewed the record showing a process server effected service on 30th January 2024 with the help of a third party who pointed out the defendants, and a subsequent service of hearing notice on 3rd December 2024. However, applying the principles in Mohamed & Another vs Shoka, Patel vs Cargo Handling Services Ltd, Shah vs Mbogo and Chemwolo & Another vs Kubende, the court weighed the discretion to set aside default judgment, found the defence raised serious issues of fraud, illegality and competing title over the land, and concluded that the interests of substantive justice required the ex-parte judgment to be set aside to allow a full inter partes hearing.

p. 8
02

Whether the defendants' defence and counterclaim raise triable issues

Holding

Yes. The defence alleges that L.R No. 337/1000 was cancelled in 2002 and replaced by L.R No. 337/2293 I.R 152284 registered to Peter Nzuki Ndeti, and that the resurrected title underpinning the respondents' claim is a nullity.

Reasoning

The applicants contended the suit property claimed by the respondents (L.R No. 337/1000, measuring 1.841 Ha) was cancelled in 2002 by the Survey of Kenya and Mavoko Town Council, with valid title being L.R No. 337/2293 I.R 152284 (1.625 Ha) registered to Peter Nzuki Ndeti. They pointed to inconsistencies in measurements across the letter of allotment, survey letters and lease relied on by the respondents, and alleged the resurrected title was fraudulently created in 2020. The court found these allegations raised triable issues as to ownership warranting a hearing on the merits.

p. 4

Legal principles established

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  • The test for setting aside default judgment involves whether the defence has merit, whether there will be prejudice, and what the explanation for delay is
  • The court has an unlimited discretion to set aside or vary judgment entered in default of appearance upon such terms as are just, exercised to avoid injustice but not to assist a person who has deliberately sought to obstruct or delay the cause of justice

Court orders

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  1. 1.That the ex-parte proceedings and Judgment entered on 24th June 2025 against the Applicants be set aside in their entirety
  2. 2.That Defendants be granted leave to enter appearance and file their Statement of Defence, Counterclaim, List of Documents and Witness Statements out of time
  3. 3.That the amended defence and counterclaim List of Documents and Witness Statements be filed and served within the next 14 days
  4. 4.That costs of this Application be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010 (as amended in 2020)Order 10 Rule 11
  • Civil Procedure Rules 2010 (as amended in 2020)Order 51 Rule 1
  • Civil Procedure Act Cap 21Sections 1A, 1B, 3
  • Constitution of Kenya 2010Article 50
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (4)

  • Mohamed & Another vs Shoka
    (1990) KLR
  • Patel vs Cargo Handling Services Ltd
    (1974) E A 75
  • Shah vs Mbogo
    (1968) E A 93
  • Chemwolo & Another vs Kubende
    (1986) KLR 492
Jurisdiction invoked
Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010 (as amended in 2020), Sections 1A, 1B and 3 of the Civil Procedure Act Cap 21, and Articles 50 and 159(2)(d) of the Constitution of Kenya 2010

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, "Ng'ang'a & another v Ndeti & another (Environment and Land Case E062 of 2023) [2026] KEELC 4907 (KLR)", Case Analysis (2026). ELCL CASE NO. 62 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4907/eng@2026-07-28

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