Matiliku v Makau; Kiio & another (Interested Parties) (Environment and Land Case 71 of 2019) [2025] KEELC 7413 (KLR)
The bottom line
#The Environment and Land Court refused to undo a 2022 land judgment and eviction orders, because the defendant was properly served and showed no real defence.
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 judgment delivered on 23/03/2022 and decree ought to be set aside
- 2.Whether the intended interested parties should be joined in the suit
- 3.Whether the Plaintiff's advocates are properly on record
Key legal issues
#Whether the judgment of 23/03/2022 and decree ought to be set aside
The application fails: judgment was regularly entered after personal service on 28/01/2021, and the draft defence raises no triable issues nor demonstrates prejudice to the Applicant
The court found that a licensed process server personally served the Defendant on 28/01/2021 and filed an affidavit of service, on which interlocutory judgment was regularly entered on 8/10/2021. Although the court retains an unfettered discretion under Order 10 Rule 11 to set aside judgments, the draft defence contended the offending structures belonged to intended interested parties on a different parcel, meaning the Applicant demonstrated no prejudice. Without an arguable defence, the discretion cannot be exercised in her favour, and delay of nearly three years aggravated the position.
Whether the intended interested parties should be joined in the suit
Joinder refused because the suit was concluded; joinder is only available in pending proceedings
Relying on Order 1 Rules 3 and 10(2) of the Civil Procedure Rules and the Supreme Court's decision in Everton Coal Enterprises Limited v Karanja, the court held that joinder contemplates pending proceedings. Judgment had been delivered on 23rd March 2022 and the application for joinder was made on 4th February 2025, long after final determination. There being no suit pending, there were no proceedings to which the intended interested parties could be joined; their remedy, if any, is a separate suit.
Whether the Plaintiff's advocates are properly on record
The issue was raised for the first time in a further affidavit without an opportunity to reply and was an irrelevant consideration; those averments were struck out
The objection that the Plaintiff's advocates lacked a Notice of Change of Advocates appeared only in the Applicant's further affidavit sworn on 25th April 2025, not in the main application or the replying affidavit. The Plaintiff had no opportunity to respond. The court held it was an irrelevant consideration given the prayers sought and struck out the offending paragraphs under Order 19 Rule 6 of the Civil Procedure Rules, 2010.
Legal principles established
#- Joinder of a party can only be effected in pending proceedings; once a suit has been finally determined there is nothing to which a party may be joined
- An applicant for setting aside an ex parte judgment must demonstrate reasons for default and a defence raising triable issues
Court orders
#- 1.Paragraphs 6, 7, 8, 9 and 10 of the Applicant's further affidavit struck out in accordance with Order 19 Rule 6 of the Civil Procedure Rules, 2010
- 2.The Notice of Motion dated 4th February, 2025 dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rule 10, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the judgment dated 23/03/2022, the decree, eviction orders and consequential orders pending hearing of the main suit
The interlocutory judgment was regularly obtained after personal service and the Applicant demonstrated no prejudice or substantial loss
Setting aside of the judgment dated 23/03/2022, decree and eviction orders
The judgment was regularly obtained and the Applicant has no arguable defence raising triable issues
Joinder of the 1st and 2nd Interested Parties as 2nd and 3rd Defendants
The suit had already been finally determined; joinder can only occur in pending proceedings
Leave to file and deem the draft defence as filed and served
It was dependent on setting aside the judgment, which was refused; the draft defence raised mere denials with no triable issues
Cross-examination of the court process server
Not granted as the application was dismissed
Costs of the application
The application was found devoid of merit
Costs
The application was dismissed; no express order as to costs appears in the final orders, and the Applicant's prayer for costs was not granted.
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 court therefore finds that the interlocutory judgment and the subsequent proceedings were regularly obtained by the Plaintifi.
Therefore, the Applicant does not have any arguable defence which can necessitate the court’s exercise of discretion for setting aside the judgment and decree in her favour.
In view of the foregoing, there is no suit pending determination for which the intended interested parties may be joined as Defendants.
In the end, the application herein is devoid of merit and accordingly it is dismissed. It is so ordered.
Issues in the judgment
#The ruling is a first-instance interlocutory decision on a motion, yet it purports to dispose of the 'main suit'; the case number and full party names are not stated in the text
Quotation from Bellevue Development Company Limited is inserted at paragraph 36 without introduction and refers to 'the Plaintifi' in a way suggesting the passage was copied from another case where the applicant was the plaintiff
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matiliku v Makau; Kiio & another (Interested Parties) (Environment and Land Case 71 of 2019) [2025] KEELC 7413 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7413/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.