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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the court's discretion under Order 10 Rule 11 was available
It was not; the applicant participated in the proceedings leading to the dismissal
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.
Whether grounds for review under Order 45 existed
No sufficient reason, error apparent on the face of the record or newly discovered evidence was shown
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.
Whether the blame for the wrong title number lay with the Respondent
No; the applicant filed suit on a non-existent title and cannot blame the respondent
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.
Legal principles established
#- 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
#- 1.The Applicant's notice of motion dated 2nd April, 2025 dismissed with costs to the Respondent
- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Interim stay of the dismissal order
The main application was dismissed, so the interim relief fell away
Costs
Dismissed with costs to the Respondent
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.
I therefore find that the Applicant's application is devoid of merit. The same is dismissed with costs to the Respondent.
The application was brought after 7 months. The reason given for the delay is not plausible.
Failure to comply with mandatory provisions of a statute cannot be excused as procedural technicality.
He instead chose to use a nonexistent title with the result that his suit was struck out.
Issues in the judgment
#Party names are not given in the judgment; parties are referred to only as Plaintiff/Applicant and Defendant/Respondent
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.