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ELCPartially AllowedELC E019 OF 2022· [2026] KEELC 4937 (KLR)

Takaungu Investments Company Limited v Khamis & 2 others (Environment and Land Case E019 of 2022) [2026] KEELC 4937 (KLR)

Environment and Land Court
15 July 2026
2,168 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a land judgment won through a tiny newspaper notice, ruling property owners deserve a real chance to be heard.

What this practically means

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Executive summary

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The 1st Defendant, Farouk Hamind Khamis, moved the court by Notice of Motion seeking stay of the orders and decree from a judgment of 26th February 2025 (which had directed cancellation/extinguishment of Title LAMU/MANDA ISLAND/232 to remove overlap with MANDA ISLAND/47 and 48 and expungement of records), setting aside of a consent of 8th December 2022 permitting substituted service, setting aside of the judgment and decree, and leave to file his Defence so the suit could be heard afresh. He contended he only learned of the suit in January 2026; substituted service had been effected via a barely legible classified advertisement in the Daily Nation, and the process server's attempts via group email and WhatsApp lacked due diligence. He also relied on a survey report showing the parcels 1.4km apart and a caution by the Plaintiff's director claiming a purchaser's interest. The court, applying Order 12 Rule 7 and Shah v Mbogo, held that its discretion to set aside ex-parte judgments serves justice and is exercised judiciously. Taking judicial notice that people rarely read classifieds in the digital age, it found the substituted service wanting. The consent was conceded to have been unnecessary. The delay was not inordinate, and the draft Defence raised triable issues. Guided by Articles 48 and 50 of the Constitution and natural justice principles (M.K v M.W, Gerita Nasipondi Bukunya, Mbaki v Macharia, James Kanyiita Nderitu), the court stayed the cancellation orders, set aside the consent and the judgment and decree, allowed the Defence to be filed and the suit heard afresh, with the Applicant bearing the costs of the application.

Key legal issues

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01

Adequacy of substituted service

Holding

Substituted service via a barely legible classified advertisement was wanting; judicial notice taken that people rarely read the classifieds, especially in the digital age.

Reasoning

The court noted the advertisement was placed in the Classified/Transitions section with barely legible print. Taking judicial notice that readers rarely consult classifieds and that most now read digital papers lacking such sections, the court found the substituted service, though lawful, insufficient to secure the Applicant's right to be heard.

p. 4
02

Setting aside ex-parte judgment under Order 12 Rule 7

Holding

The discretion was properly exercised in the Applicant's favour given inadequate service, a Defence raising triable issues, and non-inordinate delay.

Reasoning

The court applied Shah v Mbogo and the right to a fair hearing under Articles 48 and 50. The Applicant explained his delay, and the draft Defence raised trial issues, including a survey report showing the parcels 1.4km apart and a caution by the Plaintiff's director claiming a purchaser's interest, all of which warranted testing at a fresh hearing.

p. 5
03

Setting aside of consent permitting substituted service

Holding

The consent was unnecessary since an application for leave to serve by substituted service is supposed to be ex-parte; the consent was set aside.

Reasoning

Counsel for the 2nd Respondent conceded that a consent on an ex-parte substituted service application was unnecessary. Given the consent underpinned the allegedly defective service, the court set it aside together with the resulting judgment and decree.

p. 5

Legal principles established

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  • The court has a wide, judiciously exercisable discretion to set aside an ex-parte judgment to avoid injustice or hardship, but not to assist a party who deliberately obstructed or delayed justice.
  • Property rights cannot be arbitrarily taken away without an opportunity to be heard; substituted service in this case, though lawful, was wanting.

Court orders

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  1. 1.Stay of the orders and decree of 26th February 2025 directing cancellation/extinguishment of Title Number LAMU/MANDA ISLAND/232 and expungement of records, pending hearing of the main suit
  2. 2.Setting aside of the consent recorded between the Plaintiff and 2nd Defendant on 8th December 2022 issued as a court order on 13th December 2022
  3. 3.Setting aside of the judgment, orders and decree of 26th February 2025 and all consequential orders, actions and steps
  4. 4.Leave granted to the Applicant to file his Defence as per the draft, with the suit to be heard afresh
  5. 5.Applicant to bear the costs of the application
Jurisdiction invoked
Order 12 Rule 7 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, "Takaungu Investments Company Limited v Khamis & 2 others (Environment and Land Case E019 of 2022) [2026] KEELC 4937 (KLR)", Case Analysis (2026). ELC E019 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4937/eng@2026-07-15

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