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ELCPartially AllowedNot stated in the judgment

Njoroge (Suing as the administrator of the Estate of Samuel Mwangi Njoroge) v Mwichambe & 3 others (Environment and Land Case E041 of 2022) [2025] KEELC 7583 (KLR)

Environment & Land Court
14 October 2025
8,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A landowner who ignored court papers still got a second chance to defend its title, but had to pay Kshs. 400,000 in costs.

What this practically means

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Executive summary

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This is a ruling of the Environment & Land Court at Kwale (Hon. Mr. Justice LL. Naikuni) delivered on 14th October 2025 on a Notice of Motion dated 20th June 2025 by the 2nd Defendant, Huntington Limited. The applicant, registered proprietor of title Kwale/Shimoni ADJ/635, sought to arrest the writing and delivery of judgment scheduled for 2nd July 2025, to set aside the proceedings, and to be granted leave to defend the suit on the merits, asserting it learned of the suit only on 9th June 2025 while attending a related criminal case (Kwale Criminal Case No. E277 of 2021) over the same property, having never seen the substituted service advertisements published in the Standard and Daily Nation. The Plaintiff/Respondent and the 3rd & 4th Defendants opposed, contending service was properly effected after the company's Operations Manager, Mr. Twalib Khamis Ali, evaded service and concealed the company's physical address; the 1st Defendant did not oppose. The court framed four issues and held that substituted service was proper and adequately proved by the process server's affidavit. Nevertheless, applying natural justice, fair hearing guarantees and the existence of two conflicting titles over the suit property, it found it impermissible to condemn the applicant unheard. Balancing that against the applicant's inexcusable non-participation and the prejudice of a de novo restart, the court allowed the application conditionally: judgment was deferred; the applicant was granted 21 days to file its defence and counter-claim, with corresponding leave to the plaintiff; witnesses could be recalled for cross-examination; and the applicant was ordered to pay Kshs. 400,000/= thrown away costs within 30 days, failing which the application stands dismissed. Costs of the application were awarded to the Plaintiff/Respondent and 3rd & 4th Defendants/Respondents.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/Applicant has any merit whatsoever.
  2. 2.Whether service of the pleadings were properly effected upon the 2nd Defendant herein by the Plaintiff/Respondent.
  3. 3.Whether the delivery of Judgement should be deferred in order to allow the re-opening of the suit and participation of the matter by the 2nd Defendant/Applicant herein.
  4. 4.Who will bear the cost of the application herein.

Key legal issues

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01

Whether substituted service by newspaper advertisement was properly effected on the 2nd Defendant

Holding

Yes. The court held that service, including substituted service by advertisement pursuant to an order of court and supported by a process server's affidavit under Order 5 Rule 15, was adequate and proper.

Reasoning

The court noted the plaintiff's failed attempts at physical service through the 2nd Defendant's Operations Manager, who declined to disclose the company's physical location. Leave for substituted service was duly granted and advertisements were published in the Standard and Daily Nation. An Affidavit of Service sworn by process server Vincent Mambuya under Order 5 Rule 15 substantiated proper service. The court found the 2nd Defendant was properly served in accordance with the laid-down provisions of the law.

p. 14
02

Whether the judgment should be deferred and the suit re-opened to allow the 2nd Defendant to participate

Holding

Yes, subject to pre-conditions. Balancing the interests of justice, the court deferred judgment and allowed the 2nd Defendant to file its defence and counter-claim and to recall witnesses for cross-examination, conditioned on payment of thrown away costs.

Reasoning

Applying natural justice, fair hearing and Articles 25(c), 47, 48, 50 and 159 of the Constitution, the court held the 2nd Defendant should not be condemned unheard, especially given competing certificates of title over the suit property and a pending criminal case. However, it acknowledged the 2nd Defendant's inexcusable failure to participate despite proper service and the prejudice of a de novo hearing, mitigated by its offer of thrown away costs. It therefore allowed conditional participation rather than a full de novo restart.

p. 13
03

Award of costs of the application

Holding

The application being only partially successful, costs of the application were awarded to the Plaintiff/Respondent and 3rd & 4th Defendants/Respondents against the 2nd Defendant/Applicant.

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, and the cited authorities on entitlement of the successful party to costs, the court held that although the 2nd Defendant's application partially succeeded, the circumstances justified awarding costs of the application to the opposing parties, who had properly served the 2nd Defendant and expended resources litigating for over three years.

p. 15

Legal principles established

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  • Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise.
  • A proprietor is guaranteed a hearing and adduction of credible evidence before a Certificate of Title can be cancelled on grounds of fraud, misrepresentation or corrupt scheme.

Court orders

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  1. 1.The Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/Applicant is found to be meritorious and is allowed as prayed subject to fulfilment of the stipulated pre-conditions.
  2. 2.The scheduled delivery of Judgement is deferred until the matter is heard with the participation of the 2nd Defendant/Applicant.
  3. 3.The 2nd Defendant/Applicant is granted 21 days leave to file and serve its Statement of Defence and Counter-Claim in accordance with Order 7 of the Civil Procedure Rules, 2010, as per the draft annexed as 'JM-6'.
  4. 4.Upon service, the Plaintiff/Respondent is granted corresponding 21 days leave to file and serve replies to the Defence, Defence to the Counter-Claim and any further documents responding to new issues raised.
  5. 5.A Pre-Trial Conference to be conducted pursuant to Order 11 of the Civil Procedure Rules, 2010 and a hearing to be held on priority basis.
  6. 6.The 2nd Defendant/Applicant is at liberty to recall any of the witnesses of the Plaintiff/Respondent, 1st and 3rd Defendants who have already testified for cross-examination and re-examination, per Articles 25(c), 48, 50(1) & (2), 159(1) & (2) of the Constitution, Sections 3 & 13 of the Environment & Land Court Act, Section 146(6) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules.
  7. 7.The 2nd Defendant/Applicant is directed to pay the Plaintiff/Respondent and 3rd Defendant/Respondent Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=) as thrown away costs within Thirty (30) Days from the date of the Ruling.
  8. 8.In default of compliance with the directions, the Notice of Motion dated 20th June, 2025 shall stand dismissed automatically by effluxion of time.
  9. 9.Costs of the application to be borne by the 2nd Defendant/Applicant, awarded to the Plaintiff/Respondent and the 3rd & 4th Defendants/Respondents.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act, Cap. 21; Section 26(1) of the Land Registration Act, No. 3 of 2012; Article 50(1) of the Constitution of Kenya, 2010; Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application in any other party's favour / costs in the cause

Although the application was partially successful, the court found it reasonable and just to award costs of the application to the Plaintiff/Respondent and 3rd & 4th Defendants/Respondents given the 2nd Defendant's failure to participate despite proper service.

p. 15

Costs

Costs of the application to be borne by the 2nd Defendant/Applicant and awarded to the Plaintiff/Respondent and the 3rd & 4th Defendants/Respondents; in addition, the 2nd Defendant/Applicant to pay Kshs. 400,000/= as thrown away costs within 30 days, failing which the application stands automatically dismissed.

Quotable passages

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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 Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/Applicant found to be meritorious and hence be and is hereby allowed as prayed subject to the fulfilment of the Pre – conditions stipulated herein below.
p. 15Disposition - application allowed subject to pre-conditions
That the scheduled delivery of Judgement in this matter be and is hereby deferred until the matter is heard by the participation of the 2nd Defendant/Applicant herein.
p. 15Deferral of judgment
That the 2nd Defendant/Applicant directed to pay the Plaintifi/Respondent and 3rd Defendant/Respondent herein a sum of Kenya Shillings Four Hundred Thousand (Kshs. 400, 000/=) as thrown away costs as an elixir for the expenses of re – opening the case
p. 16Thrown away costs
That in default to compliance to the directions provided herein the Notice of Motion application dated 20th June, 2025 shall stand dismissed automatically by efiusion of time.
p. 16Default clause
That cost of the application to be borne by the 2nd Defendant/Applicant to be awarded to the Plaintifi/Respondent and the 3rd & 4th Defendants/Respondents herein.
p. 16Costs of the application
In view of the fore going, the Court is fully satisfied the 2nd Defendant/Applicant was properly served in accordance with the laid – down provision of the law.
p. 14Validity of substituted service

Issues in the judgment

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minor

Pre-trial conference date given as 8th December, 2015 in the orders, which appears to be a typographical error given the ruling is dated 2025 and hearing is set for 25th March, 2026.

minor

Internal contradiction on the date of the order for substituted service - the applicant's affidavit and the court's analysis refer to an order of 30th November, 2022, while the plaintiff's affidavit and the 3rd & 4th Defendants refer to an order of 9th December 2022.

minor

The court refers to the applicant paying thrown away costs but in one passage calls the applicant 'the 1st Defendant/Applicant' instead of the 2nd Defendant/Applicant.

minor

The affidavit is described both as sworn by Joseph Mwella, described variously as the Legal Officer of the 2nd Defendant and, in the concluding orders, as 'the 2nd Defendant/Applicant Operations manager'.

minor

The court's analysis at paragraph 39 misstates the applicant's position, saying 'it was unfortunate that they had seen the advertisement' where the applicant's case was that they had NOT seen the advertisements.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge (Suing as the administrator of the Estate of Samuel Mwangi Njoroge) v Mwichambe & 3 others (Environment and Land Case E041 of 2022) [2025] KEELC 7583 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14

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