Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Appeal No. E052 of 2022

Odero Mariko alias Odoyo & 2 Others v Paulvet Okeyo Odoyo

Environment & Land Court
28 September 2026
2,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment & Land Court set aside an ex-parte land judgment and ordered a fresh trial, ruling that ownership disputes must be decided on their merits, not procedural defaults.

What this practically means

#

Executive summary

#
The Environment & Land Court at Homa Bay allowed the Appellants' first appeal against a ruling of the Senior Resident Magistrate's Court at Mbita dismissing their application to set aside an ex-parte judgment entered in favour of the Respondent in ELC Case No. E-10 of 2021, a land dispute over Kasgunga/Kamreri/2055 involving claims of trespass, eviction and damages. Three issues fell for determination: timeliness of the appeal, service of the hearing notice, and whether the trial magistrate erred in refusing to set aside the ex-parte judgment. On timeliness, the court held that excluding the first day, weekends and public holidays under Section 57 of the Limitation of Actions Act and Order 50 of the Civil Procedure Rules, the appeal filed on 28th October 2022 fell within the 30-day window under Section 79G. On service, the unrebuted affidavit of the process server Edwin Omondi Otieno confirmed service, so the finding of service stood. On the core issue, the court re-evaluated the record and found material flaws: a finding of trespass in 2015 unsupported by pleadings alleging 2013; expert survey and forester's reports admitted without their authors testifying, contrary to the Evidence Act; failure to prove exclusive possession; unresolved boundary and mapping anomalies confirmed by later surveys; and both parties having been unrepresented. Applying the audi alteram partem principle, Article 50(1) and the flexible discretion in Shah v. Mbogo, the court held the refusal to set aside caused a gross miscarriage of justice. The appeal was allowed, the ruling, ex-parte judgment and execution orders set aside, and the suit remitted for retrial before a different magistrate, with the Appellants granted 14 days to file an amended defence and counterclaim and ordered to pay throwaway costs of Kshs 30,000/=.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appeal was filed out of time
  2. 2.Whether there was proper service of the hearing notice prior to the ex-parte trial
  3. 3.Whether the learned Trial Magistrate erred in refusing to set aside the ex-parte judgment and thereby denied the Appellants their right to a fair hearing under Article 50 of the Constitution

Key legal issues

#
01

Timeliness of the appeal

Holding

The appeal was filed within the statutory period once the first day, weekends and public holidays were excluded in computing time.

Reasoning

The ruling was delivered on 21st September 2022 and the appeal lodged on 28th October 2022. Applying Section 57 of the Limitation of Actions Act and Order 50 Rules 1, 2 and 3 of the Civil Procedure Rules, the first day is excluded and time rolls over past weekends and public holidays such as Mashujaa Day, placing the filing within the 30-day window under Section 79G.

p. 6
02

Service of hearing notice

Holding

Service was properly effected; the Appellants never rebutted the process server's affidavit of service, so the trial court's finding of service stands.

Reasoning

A licensed process server, Edwin Omondi Otieno, swore an affidavit confirming service of the hearing notice on 19th September 2021 for the hearing of 14th October 2021, with the Appellants acknowledging receipt but declining to sign. The Appellants did not formally challenge or rebut that affidavit in the lower court, leaving the finding of service unassailable on the facts.

p. 7
03

Refusal to set aside the ex-parte judgment

Holding

The trial magistrate's refusal to set aside the ex-parte judgment was erroneous and caused a gross miscarriage of justice, warranting setting aside and a retrial de bene esse on merits.

Reasoning

Re-evaluation revealed material flaws: a finding of trespass in 2015 unsupported by pleadings alleging 2013; expert survey and forester's reports admitted without their authors testifying contrary to the Evidence Act; failure to prove exclusive possession; unresolved boundary and mapping anomalies; both parties were unrepresented; and the discretion to set aside ex-parte judgments should be exercised flexibly to avoid injustice under audi alteram partem and Article 50(1).

p. 10

Legal principles established

#
  • A first appellate court must re-evaluate, re-analyze and reconsider the entire evidence and arrive at its own independent findings, mindful it did not hear the witnesses.
  • In computing the 30-day appeal window, the first day is excluded and where the last day falls on a Sunday or public holiday time rolls over to the next working day.
  • An uncontroverted claim does not relieve a plaintiff of the burden of proof, and expert reports must be proved through the testimony of their authors.
  • Courts should avoid entering or enforcing final determinations of ownership and eviction in land disputes on procedural defaults without full investigation on the merits.

Court orders

#
  1. 1.The Appeal is hereby ALLOWED
  2. 2.The Ruling and Order of the Senior Resident Magistrate's Court at Mbita delivered on 21st September 2022 in ELC Case No. E-10 of 2021, together with the resultant ex-parte judgment and execution orders, are hereby SET ASIDE
  3. 3.ELC Case No. E-10 of 2021 is remitted back to the Senior Resident Magistrate's Court at Mbita for RE-TRIAL on merits before a Magistrate other than the one who delivered the impugned ruling
  4. 4.The Appellants are granted 14 days from the date hereof to file and serve their formal Amended Statement of Defence and Counterclaim (if any)
  5. 5.The Appellants shall pay throwaway costs of Kshs 30,000/= to the Respondent within 30 days of this Judgment

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Senior Resident Magistrate's Court at Mbita
ELC Case No. E-10 of 2021
Jurisdiction invoked
First appellate jurisdiction over the Senior Resident Magistrate's Court (ELC appeal)

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 Ruling and Order of the Senior Resident Magistrate's Court at Mbita delivered on 21st September 2022 in ELC Case No. E-10 of 2021, together with the resultant ex-parte judgment and execution orders, are hereby SET ASIDE.
p. 10Final orders - setting aside
ELC Case No. E-10 of 2021 is hereby remitted back to the Senior Resident Magistrate's Court at Mbita for RE-TRIAL on merits before a Magistrate other than the one who delivered the impugned ruling.
p. 10Retrial order
To compensate the Respondent for procedural delays, the Appellants shall pay throwaway costs of Kshs 30,000/= to the Respondent within 30 days of this Judgment.
p. 11Throwaway costs
While valid and enforceable until set aside, an ex-parte judgment remains voidable.
p. 7Nature of ex-parte judgments
In land disputes, courts should avoid entering or enforcing final determinations of ownership and eviction on procedural defaults without full investigation on the merits
p. 9Land disputes and procedural defaults

Issues in the judgment

#
material

Delivery date stated as 2026, inconsistent with a 2022 appeal

minor

Conflicting dates for lodging the appeal

minor

Contradiction on whether an expert witness testified at trial

minor

Paragraph numbering skips from 33 to 36

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Odero Mariko alias Odoyo & 2 Others v Paulvet Okeyo Odoyo", Case Analysis (2026). ELC Appeal No. E052 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5958/eng@2026-09-28

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