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ELCAllowedELC (Machakos) – ex parte post-judgment notice of motion dated 12/08/2025 (underlying originating summons)· [2026] KEELC 998 (KLR)
Watetu & another v Watetu & another (As Trustees of Angel Kasese Musomba & Wangui Musomba) (Environment and Land Case E034 of 2025) [2026] KEELC 998 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court corrected an e-filing mistake so two children could sell inherited land to pay for their education.
What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Machakos (A. Y. Koross, J) determined an ex parte post-judgment notice of motion dated 12/08/2025 in which the applicants, Angel Kasese Musomba and Wangui Musomba, sought review and setting aside of the court's judgment of 10/06/2025 dismissing their originating summons. The underlying summons sought leave to sell Land Reference Number 12715/1279 to pay university and school fees for the two children. The dismissal arose because the applicants' counsel inadvertently omitted the final page of the certificate of title when scanning documents for e-filing; the incomplete title showed the property still registered in the name of the deceased, Jackson N. Musomba. Anchored on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and supported by authorities on counsel's mistake including the Supreme Court's decision in Madhwani v Burton and Madan JA's dictum in Belinda Murai vs Amoi Wainaina, the applicants argued the omission was an honest, unintended error. The court framed a single issue: whether the applicants satisfied the legal threshold for review. Accepting counsel's explanation and noting the completed title showed entries vesting the property in the administrators and then in them as trustees for the children, the court found no valid grounds to deny the timeous motion. The judgment of 10/06/2025 was reviewed such that paragraph 13 now reads that the originating summons succeeds: the applicants are authorised to sell and transfer the suit property and apply the proceeds to sale costs, the children's education expenses, and to invest the balance for their future education, with the applicants bearing their respective costs.
Key legal issues
#01
Whether the applicants satisfied the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules on the ground of mistake
Holding
The court found that the omitted final page of the title document, showing subsequent registration entries vesting the suit property in the applicants as trustees for the children, was an inadvertent mistake by counsel; the motion was filed timeously and the judgment was reviewed to allow the originating summons.
Reasoning
Section 80 and Order 45 Rule 1 permit review on discovery of new and important matter, mistake or error apparent on the record. Counsel explained that the final page of the title was omitted during scanning for e-filing. The court accepted this as a genuine, unintended human error, noted the motion was filed timeously, and held that granting it would promote the overriding objectives of justice and the best interests of the children regarding their right to education.
p. 4
Legal principles established
#- Mistakes of counsel ought not to be visited upon a litigant, provided the applicant shows diligence and effort with cogent and credible evidence of steps taken.
- A mistake, even by senior counsel, does not close the door of justice; the court should rectify it where the interests of justice so dictate.
- Blunders should not deprive a party of a hearing on the merits; absent fraud or intent to overreach, defaults can be put right by payment of costs.
Court orders
#- 1.The judgment dated 10/06/2025 is reviewed and, in particular, paragraph 13, which is to read as follows: 'In the premises, the originating summons succeeds, and the following final disposal orders are hereby issued'
- 2.The applicants are hereby authorised and allowed to sell and transfer Land Reference No. 12715/1279 (Original No. 12715/1259/21), Certificate of Title number I.R. 75571
- 3.Proceeds of sale to be applied to: (a) costs of and incidental to the sale and transfer; (b) university fees and education-related expenses for Angel Kasese Musomba at United States International University – Africa; (c) school fees and education-related expenses for Wangui Musomba at Elim Group of Schools; (d) investment of the balance in a savings or call account for the future education of the two beneficiaries
- 4.The applicants shall bear their respective costs
- 5.Orders accordingly
- Jurisdiction invoked
- Sections 13(1), (2) and 19 of the Environment and Land Court Act No. 19 of 2011; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act Cap 21; Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watetu & another v Watetu & another (As Trustees of Angel Kasese Musomba & Wangui Musomba) (Environment and Land Case E034 of 2025) [2026] KEELC 998 (KLR)", Case Analysis (2026). ELC (Machakos) – ex parte post-judgment notice of motion dated 12/08/2025 (underlying originating summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/998/eng@2026-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.