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ELCPartially AllowedKericho ELC Appeal arising from Kericho CM ELC Case No. 028 of 2021 (Amended Memorandum of Appeal dated 27th June, 2025)

Kenya Forest Service v Ruto (Environment and Land Appeal E006 of 2024) [2026] KEELC 2167 (KLR)

Environment and Land Court of Kenya
16 April 2026
7,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Kericho Environment and Land Court set aside a judgment that gave a widow forest land, because the magistrate ignored triable issues like the land being gazetted forest.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kericho against the ruling of Hon. B. R. Kipyegon (PM) delivered on 25th April 2024 in Kericho CM ELC Case No. E028 of 2021, which dismissed the Appellant's application to set aside ex parte proceedings and the judgment of 22nd March 2023 in which the Respondent was declared proprietor of LR No. Kericho/Kipkelion/Chepseon Block 11 (Sitian) 17 and granted a permanent injunction against eviction. The Appellant, the Attorney General acting for the Forest Conservator, raised grounds including non-service of summons, absence of a pre-trial conference under Order 11, failure to dispose of a pending application, service of hearing notice on the wrong email address, the delivery of final orders in a 'ruling' rather than a 'judgment', and the existence of triable issues in its draft defence, notably that the suit land forms part of the gazetted South Western Mau Forest. The court found most grounds unmerited: the Appellant had notice of the suit and had entered appearance; non-compliance with Order 11 is a curable technicality; a pending application is not a factor in setting aside a regular default judgment; and the mislabelling of the judgment as a 'ruling' was an accidental slip. However, the court found the trial magistrate erred in failing to consider whether the draft defence raised triable issues. Accordingly, the judgment of 22nd March 2023, the ruling of 25th April 2024 and all consequential orders were set aside, with costs of the appeal to the Appellant.

Questions the Court framed

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

  1. 1.Whether the Learned Trial Magistrate erred in failing to find that the Appellant was not served with Summons to enter appearance
  2. 2.Whether the Learned Trial Magistrate erred in failing to consider that a pre-trial conference was not undertaken and the suit certified ready for hearing as provided for under Order 11 of the Civil Procedure Rules
  3. 3.Whether the Learned Trial Magistrate erred in failing to consider that the Respondent's Amended Notice of Motion application dated 25th May, 2021 was not disposed of before the main suit proceeded for hearing
  4. 4.Whether the Learned Trial Magistrate erred in failing to find that the suit proceeded without service of the hearing notice upon the Appellant through the provided email address
  5. 5.Whether the Learned Trial Magistrate erred in failing to consider that the Court delivered a ruling instead of a judgement
  6. 6.Whether the Learned Trial Magistrate erred in failing to consider that the attached draft defence raised triable issues
  7. 7.Who should bear costs of the appeal

Key legal issues

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01

Service of summons to enter appearance

Holding

Ground failed - the Appellant had notice of the suit, entered appearance and responded to an application, so service of summons was superfluous

Reasoning

The trial magistrate did not address the issue of service of summons, but the appellate court found from the record that the Appellant admitted being served with pleadings, entered appearance on 25th June 2021 and responded to the Respondent's Amended Notice of Motion. Citing Royal Oilfield Logistics and Uncle Sam's Githurai, once a defendant enters appearance and responds, insisting on service of summons is superfluous. The judgment was therefore a regular one.

p. 9
02

Failure to conduct pre-trial conference under Order 11

Holding

Ground failed - non-compliance with Order 11 is a curable technicality, not fatal to the proceedings

Reasoning

The record showed no pre-trial conference was undertaken. However, relying on Mbugua v Mwangi and Mbogo v NCBA Bank, the court held that while pre-trial conferences are mandatory under Order 11 rule 1, failure to comply is a technicality curable under Article 159(2)(d) of the Constitution where parties filed pleadings and evidence; it cannot be a basis for setting aside a judgment.

p. 10
03

Undisposed pending application before hearing of the main suit

Holding

Ground failed - existence of a pending application is not a factor in setting aside a regular default judgment

Reasoning

The court applied the James Kanyiita Nderitu regular/irregular default judgment dichotomy. Since the judgment was regular (the Appellant had notice), the court's discretion in setting it aside is governed by the listed factors, and whether a pending application had been disposed of is not one of them.

p. 11
04

Service of hearing notice via the wrong email address

Holding

Ground failed - although service should have been through the provided email (cl.kisumu@ag.go.ke), the Appellant was aware of the proceedings and under a duty to follow up

Reasoning

The Memorandum of Appearance showed the provided email was cl.kisumu@ag.go.ke but hearing notice was sent to info@ag.go.ke. The court held the Respondent ought to have used the provided email, but since the Appellant was at all times aware of the proceedings, it had a duty to follow the progress of the suit, and the trial magistrate did not err in failing to consider the issue.

p. 12
05

Delivery of final orders in a 'ruling' instead of a 'judgment'

Holding

Ground failed - the mislabelling was an accidental slip; the decision was in substance a judgment

Reasoning

Following Joshua Akeyo Ogendo v David Rowland Matende, the court held that the 22nd March 2023 'ruling' considered pleadings and evidence and granted substantive prayers, so it was in all respects a judgment. The erroneous title is an accidental slip correctable under section 99 of the Civil Procedure Act and does not render the decision fatally defective.

p. 13
06

Whether the draft defence raised triable issues

Holding

Ground succeeded - the trial magistrate erred in failing to consider the triable issues raised in the draft defence

Reasoning

The court found the draft defence raised triable issues, notably the claim that the suit parcel forms part of the gazetted South Western Mau Forest. Applying James Kanyiita Nderitu factors, the court noted there was no inordinate delay (application filed about one month and seventeen days after judgment), and the trial magistrate failed to consider these factors in dismissing the setting-aside application.

p. 15

Legal principles established

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  • A decision titled 'ruling' which in substance determines the suit after full hearing is in law a judgment, and the mislabelling is an accidental slip curable under section 99 of the Civil Procedure Act
  • A defendant who has notice of a suit, entered appearance and responded to an application cannot insist on proof of service of summons to enter appearance
  • Failure to conduct a pre-trial conference under Order 11 of the Civil Procedure Rules is a curable technicality and not a basis to set aside a judgment
  • In considering setting aside a regular default judgment, a court must consider the reason for default, delay, whether the defence raises triable issues, prejudice and the interest of justice
  • Costs follow the event under section 27 of the Civil Procedure Act

Court orders

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  1. 1.The ruling delivered on 25th April, 2024 is set aside
  2. 2.The Judgment delivered on 22nd March, 2023 in Kericho CM ELC Case No. E028 of 2021 and all consequential proceedings and orders are set aside
  3. 3.The Appellant shall have costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Kericho (ELC)
Kericho CM ELC Case No. E028 of 2021
Jurisdiction invoked
First appeal from the subordinate court (appellate jurisdiction of the ELC over appeals from magistrates' courts in land matters); final appeal invoked on grounds including Article 50 of the Constitution and the Civil Procedure Act

Relief refused

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None - the appeal was allowed in full

All grounds that succeeded led to setting aside the impugned decisions

p. 15

Costs

The Appellant shall have costs of the appeal

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.

In the result, the ruling delivered on 25th April, 2024, Judgment delivered on 22nd March, 2023 in Kericho CM ELC Case No. E028 of 2021 and all consequential proceedings and orders are hereby set aside.
p. 15Disposition - setting aside of judgment and consequential orders
The Appellant shall have costs of the appeal.
p. 15Costs order
it is evident that the Appellant's intended defence raises triable issues. The Learned Trial Magistrate therefore erred in failing to consider whether the Appellant's draft Statement of defence raised triable issues.
p. 15Triable issues - successful ground of appeal
even though it was mandatory for the trial Court to conduct a pre-trial conference, failure to do so cannot be the basis upon which a judgement is set aside.
p. 10Order 11 pre-trial conference - curable technicality
it is evident that the ruling delivered on 22nd March, 2023 was in all respects a judgement.
p. 13Ruling mislabelled as such is in substance a judgment

Issues in the judgment

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minor

Internal inconsistency on the date of the impugned ruling - referred to variously as 25th April 2024 and 25th April 2025

minor

Inconsistent naming of the trial magistrate - the judgment opens attributing the decision to 'Hon. Japhet Bii' but elsewhere refers to 'the Honorable Principal Magistrate B.R Kipyegon (PM)' issuing the ruling of 22nd March 2023

minor

Inconsistent dates given for the Appellant's setting-aside application - 'application dated 14th May, 2023' and 'application dated 10th May, 2023'

minor

Date of judgment as printed (16th April 2026) precedes the last procedural event recorded (appeal reserved for judgment on 2nd December 2025) - not internally contradictory but the year 2026 is noted as printed

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, "Kenya Forest Service v Ruto (Environment and Land Appeal E006 of 2024) [2026] KEELC 2167 (KLR)", Case Analysis (2026). Kericho ELC Appeal arising from Kericho CM ELC Case No. 028 of 2021 (Amended Memorandum of Appeal dated 27th June, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2167/eng@2026-04-16

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