Kisoso v Omoi & another; County Government of Kajiado & another (Interested Parties) (Environment and Land Appeal E010 of 2024) [2025] KEELC 6958 (KLR)
The bottom line
#The Environment and Land Court in Kajiado dismissed a landowner's appeal, confirming that ignoring court summons and lacking a real defence will cost you your land claim.
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 Learned Trial Magistrate erred in failing to set aside the Judgement delivered on 8th December 2021
- 2.Whether the Learned Trial Magistrate disregarded the Appellant's evidence in the Application dated 19th April 2023
- 3.Whether this Appeal is merited
- 4.What orders should issue
- 5.Who should bear costs of the Appeal
Key legal issues
#Whether service of summons on the Appellant was properly effected
The court found the Appellant was duly served or was aware of the suit; the misspelling of his name ('Karkeena' vs 'Parkeenka') did not excuse non-appearance
The affidavit of service showed the process server contacted the Appellant on 0727242854; he declined service and an advocate allegedly received documents on 19th December 2017. Substituted service by advertisement in the Daily Nation on 5th February 2018 was also effected with leave of court. The court held the name misspelling was no reason to fail to enter appearance and inferred deliberate evasion.
Whether the trial magistrate erred in declining to set aside the default judgment
No error; the Appellant raised no triable issues and the same grounds had been litigated by the 1st Defendant at trial
Reviewing the record on a first appeal, the court found the allotting authority (County Government of Kajiado) testified at trial and its evidence was rejected; the Appellant could add nothing more. The draft defence sold away the plot and the judgment had been executed, with the 1st Respondent registered and issued an allotment letter. Setting aside would serve no purpose.
Whether the Appellant, having sold the plot, was a proper party
Yes; no evidence of transfer was produced, so the Appellant remained the last recorded owner of plot 413
The court noted there was no evidence of the property being transferred from the Appellant to any other person on the register, making him the right party to be sued. Further, the history of acquisition matters only to the extent of the end result; a party without good title cannot pass valid title to others.
Whether the learned magistrate erred in treating the application as an attempt to sit on appeal over a fellow magistrate
The court upheld the outcome on the merits, finding no triable defence regardless of that characterization
While counsel argued setting aside for non-service is not sitting on appeal, the appellate court independently evaluated the evidence, as required on a first appeal, and found the magistrate's conclusion that the Appellant was served and had no meritorious defence to be supported by the record. The prior judgment was thus affirmed.
Legal principles established
#- Discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable error, not to assist a party who deliberately obstructed justice
- A regular default judgment will not be set aside unless the applicant shows a defence on the merits raising a triable issue
- Where parties claim the same plot of land, the first allocation in time should succeed
- A person who no longer holds good title cannot pass valid title to downstream transferees; the last recorded owner is the proper party to sue
Court orders
#- 1.The Appeal is dismissed
- 2.The Ruling dated 23rd February 2024 is upheld
- 3.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
- Magistrates' Court (Kajiado)
- Suit filed 7th December 2017; Ruling dated 23rd February 2024
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court (original suit on ownership of Plot A687 originally 229/Business Noonkopir Trading Centre)
Relief refused
#Setting aside of the Ruling dated 23rd February 2024
No error established in the magistrate's refusal to set aside the 2021 judgment; appellant was served or aware of the suit and had no triable defence
Allowance of the Appellant's application dated 19th April 2023 and reference to another magistrate
Appellant did not raise any triable issues meriting setting aside the judgment
Costs of the application at the lower court and the appeal to the Appellant
Appeal dismissed with costs to the 1st and 2nd Respondents
Costs
Appeal dismissed with costs to the 1st and 2nd Respondents.
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.
This Appeal is thus dismissed with costs to the 1st and 2nd Respondents.
I find that this Appeal is therefore not merited and the Ruling dated 23rd February 2024 is upheld.
It is my view that he was aware of the suit in the lower court but deliberately stayed out of the proceedings.
the Appellant did not raise any triable issues that merited the setting of the judgement.
if the parties are claiming the same plot of land, it is trite that the first allocation in time should succeed.
if the Court finds that the Appellant did not hold good title, then no valid title or claim of ownership could pass to any other persons.
Issues in the judgment
#Judgment describes the appeal as raising 14 grounds compressed into issues, while the memorandum reproduced lists 12 grounds
Internal inconsistency in dates of the default judgment: paragraph 5 refers to a judgment dated 22nd December 2021 while elsewhere the judgment is dated 8th December 2021
Inconsistent allotment year for Jesse Gachago's plot 413: one passage says 19th May 1995, another says 19th May 1994
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoso v Omoi & another; County Government of Kajiado & another (Interested Parties) (Environment and Land Appeal E010 of 2024) [2025] KEELC 6958 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 21st March 2024, amended 28th March 2025 (ELC Appeal, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6958/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.