Ocheng & another v Lidwa (Environment and Land Appeal E047 of 2025) [2026] KEELC 417 (KLR)
The bottom line
#Kenya's Environment and Land Court at Siaya allowed the appeal, restoring landowners' right to defend a case that had gone ahead without them, in exchange for paying 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 trial court exercised its discretion judiciously in declining to set aside the ex parte proceedings
- 2.What orders should issue in the appeal and costs
Key legal issues
#Whether sufficient cause existed to set aside the ex parte proceedings and reinstate the defendants' opportunity to be heard
The appeal succeeded: despite delay attributable to the defendants, substantive justice required that they be heard, the defence having raised triable issues and the decree threatening cancellation of title
The court balanced the plaintiff's legitimate grievance at delay against the fundamental right to be heard, noting an earlier ruling had set aside judgment conditionally, costs were allegedly remitted and a disputed consent existed. Cancellation of title was a grave matter, so the course carrying the lower risk of injustice was to allow the defence to be filed and the matter reheard.
Whether the alleged forgery of the consent dated 3/6/2024 was established
The issue was not resolved; forgery as fraud required proof at a higher standard than balance of probabilities, and neither party led evidence on it
The plaintiff alleged the consent was a forgery but did not lead evidence, merely calling for forensic investigations. The applicant likewise did nothing to prove its veracity. The appellate court noted the unresolved doubt but did not let it defeat the appeal.
Applicable legal framework for setting aside ex parte orders and default judgments
Order 12 rule 7 and Order 10 rule 11 of the Civil Procedure Rules, 2010 confer a discretionary power to set aside judgments or orders on such terms as may be just, on sufficient cause
The court invoked Order 12 rule 7 permitting setting aside of judgment entered or dismissal of suit, and Order 10 rule 11 on failure to file defence, guided by Shah v Mbogo principles that discretion must be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and reanalyse the evidence and determine whether the trial court's conclusions stand
- An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself or was clearly wrong resulting in injustice
- Forgery, being fraud, must be proved to a standard higher than a balance of probabilities
- The court should take the course that carries the lower risk of injustice; cancellation of title is a grave matter
Court orders
#- 1.The ruling delivered by the trial court on 13th November 2024 and all orders arising therefrom be and is hereby set aside
- 2.The judgement and decree in the trial court proceedings is hereby set aside
- 3.The Defendants defences to be deemed as duly filed upon payment of the requisite fees in the trial court
- 4.The appellant shall pay costs of Kshs. 20,000/- to the plaintiff within 45 days of this order and submit to the trial court proof thereof
- 5.The matter be remitted to the lower court for hearing de novo on priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrates Court at Siaya
- ELC No. 66 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Senior Principal Magistrates Court (Memorandum of Appeal dated 21st November 2024)
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 upshot of the foregoing is that the appeal succeeds and is allowed on the following terms
The ruling delivered by the trial court on 13th November 2024 and all orders arising therefrom be and is hereby set aside.
The judgement and decree in the trial court proceedings is hereby set aside.
The matter be remitted to the lower court for hearing de novo on priority basis.
The appellant shall pay costs of Kshs. 20,000/- to the plaintiff within 45 days of this order and submit to the trial court proof thereof.
Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter.
Cancellation of title is a grave matter no wonder the pleas that the appellant will suffer irreparable harm.
Issues in the judgment
#The judgment states inconsistently that the ruling appealed against was delivered on '24th June 2024' and on '15th November 2024' in the opening paragraph, while the grounds seek to set aside a 'ruling delivered by the trial court on 13th November 2024', and the final orders set aside a ruling of 13th November 2024
The judgment refers to a ruling 'dated 2/11/2022 (sic 2023)' where elsewhere it is consistently described as dated 2/11/2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ocheng & another v Lidwa (Environment and Land Appeal E047 of 2025) [2026] KEELC 417 (KLR)", Case Analysis (2026). Siaya Magistrates Court ELC No. 66 of 2019 (appeal therein, Memorandum of Appeal dated 21st November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/417/eng@2026-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.