Wabungo v Mwamvula & another (Environment and Land Appeal E003 of 2024) [2025] KEELC 3309 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an ex-parte land judgment, ruling that a land dispute must be heard on its merits even if a party was duly served but slept on their case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant appeal preferred by the Appellant has any merit whatsoever
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who will bear the costs of the Appeal
Key legal issues
#Whether the judgment of the trial court was regular or irregular
The judgment was regular because the Appellant's advocate was served with a hearing notice by a licensed process server and the Appellant himself was personally served by the Respondent's advocate on 13th October 2023.
The court examined the returns of service: Shem Abuodho, a licensed process server, served the hearing notice on the Appellant's advocate, and Dominic Anaya Advocate personally served the Appellant at Mariakani Law Courts on 13th October 2023. The matter therefore proceeded regularly to judgment against a duly served party, so Order 10 Rule 11 discretion, not ex debito justitiae relief, applied.
Whether the trial magistrate misdirected himself in declining to set aside the ex-parte judgment
The court held the magistrate was within his legal right, since the Appellant was indolent and blameworthy, yet allowed the appeal on inherent powers and natural justice given the triable land dispute.
The court found the Appellant had been properly served and failed to follow up his case, so the trial court's refusal to set aside the judgment was a proper exercise of discretion. However, invoking Article 159 of the Constitution, the Oxygen Principles and the inherent jurisdiction of the court, and noting the defence raised triable issues on ownership of land registered in favour of Samburu Group Ranch, the court allowed the appeal in the interest of justice.
Whether the Appellant could be treated as a contemnor undeserving of discretion
The Appellant argued no contempt citation or hearing ever occurred; the court did not adopt the contempt finding against him.
The Appellant submitted that the trial court found him a contemnor without any citation, motion or hearing, contrary to natural justice. The appellate court did not rest its decision on contempt; it allowed the appeal on principles of natural justice, equity and conscience.
Who bears the costs of the appeal
Although the appeal was allowed on inherent powers, costs were awarded to the Respondents because the lower court's decision on the regular judgment was proper.
The court applied Section 27(1) of the Civil Procedure Act that costs follow the event. Since the judgment below was regular and properly entered, and the appeal succeeded only on the court's inherent powers and interest of justice, the Respondents were nonetheless held entitled to the costs of the appeal.
Legal principles established
#- A regular default judgment is set aside in the court's discretion, considering reasons for default and whether the defence raises triable issues; an irregular one is set aside as of right.
- A litigant bears the primary duty of vigilance over his own suit notwithstanding representation by an advocate.
- Land disputes are emotive and should, as far as possible, be heard on the merits so parties are not driven from the seat of justice unheard.
Court orders
#- 1.The appeal is allowed, the Ruling delivered on 23rd April 2024 is overturned and substituted with an order allowing the Appellant's application dated 18th January, 2024
- 2.The Ex-Parte Judgement delivered on 19th December 2023 in Mariakani SPM ELC Suit No. E006 of 2021 is set aside
- 3.The trial suit Mariakani SPM ELC Suit E006 of 2021 is re-opened for de novo hearing before any Magistrate other than Hon. M. S. Kimani (SPM)
- 4.The matter to be mentioned on 21st May, 2025 before the ELC, SPM Court at Kwale for directions on a priority basis
- 5.Costs of the appeal awarded to the 1st and 2nd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Mariakani (SPM - ELC)
- SPM ELC Suit No. E006 of 2021 - Mganga Mwamvula Nyawa & Chengo Mganga v Ndurya Wabungo
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act, Cap. 21, read with Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011
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.
That the appeal is allowed accordingly whereby the said Ruling delivered on……….be and is overturned and substituting with an Order allowing the Appellant's application dated 18th January, 2024.
That the Ex - Parte Judgement delivered on 19th December 2023 by the Lower Court in Mariakani in SPM ELC Suit No. E006 of 2021 be and is hereby set aside.
That the trial suit - Mariakani SPM ELC Suit E006 of 2021 be and is re - opened for “de novo” hearing at before any Magistrate other than Hon. M. S. Kimani (SPM), who delivered the impugned ruling.
The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice
In as much as advocates owe duty of care to their clients, the clients owe the biggest duty of care to themselves by being vigilant and proactive in following up on the progress of their cases.
Issues in the judgment
#The Appellant's written submissions are dated 15th January, 2024, which predates the ruling being appealed (23rd April 2024) and the direction to file submissions (15th November 2024), suggesting a dating error.
The disposition does not state the date of the ruling overturned, leaving a blank: 'delivered on……….be and is overturned'.
The judgment header records the date of delivery as 8th April 2025 in the narrative but is signed and dated at Kwale on 7th April 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wabungo v Mwamvula & another (Environment and Land Appeal E003 of 2024) [2025] KEELC 3309 (KLR)", Case Analysis (2025). ELC Appeal (Mariakani) - Memorandum of Appeal dated 7th May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3309/eng@2025-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.