Wabwire v Kuttuny & 2 others (Environment and Land Appeal E102 of 2024) [2025] KEELC 18559 (KLR) (27 November 2025) (Ruling) Neutral citation: [2025] KEELC 18559 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT AND LAND APPEAL E102 OF 2024 J OMANGE, J NOVEMBER 27, 2025 BETWEEN SYLVESTER PHILIP WABWIRE ............................................................. PLAINTIFF AND HONOURABLE JOSHUA KUTTUNY .......................................... 1ST DEFENDANT SMITH VALLEY LIMITED ............................................................. 2ND DEFENDANT PAUL MAIYO ................................................................................... 3RD DEFENDANT RULING 1. The Plainti vide a plaint dated 6th March 2024 led a suit seeking a refund of kshs 3,700,000 that he averred that he had paid for Nairobi Block 148 81 (hereinafter referred to as the suit property). On the strength of the 1st Defendants word that he is the benecial owner of the suit property the Plainti paid a deposit of Kshs 3,200,000. 2. It is his case that he later learned that the Defendants are in active litigation in ELC E 420 of 2021. He contends that the 1st and 3rd Defendant used the 2nd Defendant as a corporate vehicle to defraud him. 3. On 14th October 2024 upon the request of the Plaintis the court entered interlocutory Judgement against the Defendants who had failed to enter appearance or le a defence. The Defendants seek to set aside the Judgement so as to be heard. 4. The applicants aver that they were never served with the pleadings herein as the person served by the name Eunice is not their secretary. They insist that while the 1st Defendant is a Chairperson of the Copyright Board, he does not have sta assigned to him as he only visits the oces occasionally. Further he states that had the document been received at Copyright Board, it would have been stamped which is not the case. They further insist that the Plaintis dealt with the 2nd Defendant and not the 1st and 2nd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18559/eng@2025-11-27 1
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5. The Respondent on his part insists that all the Defendants procured money from him by falsely pretending that they owned the suit property. He states that they had previous discussions on the possibility of settling the matter outside Court. 6. The court identies the following issues for determination;Whether service upon the Defendants was proper; andWhether the Defendants have shown sucient ground to warrant setting aside the interlocutory judgment. 7. The Plaintis contend that they served the Defendants using two modes of service namely; physical service at Copyright Board of Kenya where the 1st Defendant is the Chairperson and through the known emails of the Defendants. 8. Regarding physical service, the Court notes that there was no indication that the documents were received and brought to the attention of the Defendants. 9. However, on the email service the Defendants have not disputed that the emails used to serve them was the correct email. Order 5 Rule 22C of the Civil Procedure Rules recognises electronic service as proper where an email address has been used or provided by a party. In the instant case the adavit of service dated 23rd April 2024 by Elizabeth Kisua indicates that she served the Defendants. It is therefore not true that they were not served. 10. However, proper service whether electronic or otherwise does not automatically bar the Court from setting aside an interlocutory judgment. The question then becomes whether the Defendants have raised grounds deserving of the Court’s discretion. 11. The 1st and 3rd Defendants’ primary defence is that the Plainti contracted with a distinct corporate entity, not with them in their personal capacity. This raises a substantive triable issue, particularly on privity of contract, whether the Defendants acted as agents or directors, whether liability can attach personally, and whether the suit is founded on a misjoinder or misconceived cause of action. 12. Questions of culpability, personal liability, and the identity of the true contracting party are matters of fact and law that cannot be resolved summarily or on the basis of default. They require examination of documents, cross-examination, and a full hearing. 13. The power to set aside ex parte orders is discretionary. This was stated in Patel v E.A Cargo Handling Services Ltd (1974) EA 75, also relied on by the applicants herein where the court held that: “ There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the Court is to do Justice to the parties and the court will not impose conditions on itself to feter the wide discretion given it by the Rules.’ 14. Given my ndings on the gaps of service I nd that there is sucient grounds to exercise discretion in favour of the Defendants. 15. The application is thus allowed in the following terms a. The default judgment entered on 14th October 2024 and the subsequent decree dated 25th November 2024 are hereby set aside. b. The Defendants are granted leave to le and serve their Defence within Twenty one (21) days c. The Plainti shall be paid thrown away costs of Kshs 20000 by the Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18559/eng@2025-11-27 2
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RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Ms Obiero holding brief for Mr Maina for Plaintis Mr Owino for Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18559/eng@2025-11-27 3
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