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ELCDismissedELC E045 of 2022 (and associated files ELC (OS) Nos. 3, 20, 21, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 of 2022)

Muveu v Ndolo (Sued as the Beneficiary of the Estate of the Late General Joseph Musyimi Lele Ndolo) (Enviromental and Land Originating Summons E045 of 2022) [2025] KEELC 8011 (KLR)

Environment and Land Court
20 November 2025
2,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive an adverse possession suit built on a title that no longer existed, and ordered the applicant to pay costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by Hon. E. O. Obaga, Judge, determines a notice of motion dated 2nd April 2025 by the Plaintiff/Applicant seeking review, setting aside and/or vacation of an order of 25th September 2024 dismissing his suit, plus an interim stay. The applicant's adverse possession claim over 2.1 acres comprised in LR No. 1757/6 was struck out because the suit was based on a non-existent title, the land having been subdivided on 22nd October 2019. The applicant argued that the respondent concealed the subdivision and the consolidation of 17 related suits under ELC No. 3 of 2022, and relied on Order 10 Rule 11 of the Civil Procedure Rules and the Shah v Mbogo discretion. The respondent countered that no grounds for review existed, the application came seven months late, and the applicant's own counsel knew of the subdivision. The court framed a single issue: whether grounds warranted review and setting aside of the dismissal order. It held that Order 10 Rule 11 applies only to non-appearance, default of defence or failure to serve, none of which existed since the applicant participated in the striking-out application. No Order 45 review grounds were made out, no error on the face of the record or new evidence existed, and the seven-month delay was unexplained. The applicant was himself at fault for pleading a non-existent title. The application was dismissed with costs to the respondent, the orders applying to the seventeen related files by counsel's agreement.

Questions the Court framed

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

  1. 1.Whether the Applicant has demonstrated grounds which can warrant a review and setting aside of the orders of 25th September, 2024

Key legal issues

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01

Whether the court's discretion under Order 10 Rule 11 was available

Holding

It was not; the applicant participated in the proceedings leading to the dismissal

Reasoning

Order 10 Rule 11 applies to judgment entered where there is non-appearance, default of defence or failure to serve. The applicant fully participated in the striking-out application of 19th May, 2023, so he cannot invoke the court's discretion to set aside the dismissal order of 25th September, 2024.

p. 5
02

Whether grounds for review under Order 45 existed

Holding

No sufficient reason, error apparent on the face of the record or newly discovered evidence was shown

Reasoning

The court found no sufficient reason for setting aside the 25th September 2024 order. There was no error apparent on the face of the record, nor discovery of new evidence which due diligence could not have obtained. The application was also brought seven months after the order, and the explanation for delay was not plausible.

p. 5
03

Whether the blame for the wrong title number lay with the Respondent

Holding

No; the applicant filed suit on a non-existent title and cannot blame the respondent

Reasoning

The applicant's suit was founded on LR No. 1757/6, which had ceased to exist upon subdivision on 22nd October 2019, before filing. As an adverse possession claimant, it was incumbent on him to base his claim on a correct, existing title. His counsel knew of the subdivision as early as 23rd February 2023 yet the amendment application remained unprosecuted.

p. 5

Legal principles established

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  • Order 10 Rule 11 discretion applies only to judgments entered on non-appearance, default of defence or failure to serve, not where the party participated
  • A claim based on a non-existent title cannot be excused as a procedural technicality

Court orders

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  1. 1.The Applicant's notice of motion dated 2nd April, 2025 dismissed with costs to the Respondent
  2. 2.The orders made in this file apply to ELC (OS) Nos. 3, 20, 21, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 all of 2022

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 10 Rule 11, Order 22 Rule (1), Order 51 Rule (1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Consolidated with
ELC (OS) Nos. 3, 20, 21, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 all of 2022

Relief refused

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Review, setting aside and/or vacating the order of 25th September, 2024 dismissing the suit

The Applicant fully participated in the striking-out application; Order 10 Rule 11 does not apply and no grounds for review under Order 45 were shown

p. 5

Interim stay of the dismissal order

The main application was dismissed, so the interim relief fell away

p. 5

Costs

Dismissed with costs to the Respondent

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.

I therefore find that the Applicant's application is devoid of merit. The same is dismissed with costs to the Respondent.
p. 5Disposition - dismissal of application
The application was brought after 7 months. The reason given for the delay is not plausible.
p. 5Inordinate and unexplained delay
Failure to comply with mandatory provisions of a statute cannot be excused as procedural technicality.
p. 5Mandatory statutory compliance in adverse possession claims
He instead chose to use a nonexistent title with the result that his suit was struck out.
p. 5Suit founded on non-existent title

Issues in the judgment

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minor

Party names are not given in the judgment; parties are referred to only as Plaintiff/Applicant and Defendant/Respondent

minor

The court, at paragraph 24, describes the striking-out application as filed on 23rd May, 2023 whereas paragraph 24 elsewhere records the notice of motion as dated 19th May, 2023 and the applicant's earlier contention places the submission stage differently

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, "Muveu v Ndolo (Sued as the Beneficiary of the Estate of the Late General Joseph Musyimi Lele Ndolo) (Enviromental and Land Originating Summons E045 of 2022) [2025] KEELC 8011 (KLR)", Case Analysis (2025). ELC E045 of 2022 (and associated files ELC (OS) Nos. 3, 20, 21, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8011/eng@2025-11-20

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