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ELCAllowed· [2026] KEELC 2468 (KLR)

Freudenthal & another v Ryrie & another (Environment and Land Case E051 of 2023) [2026] KEELC 2468 (KLR)

Environment and Land Court
28 April 2026
MNMwangi Njoroge
816 words in judgment
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The bottom line

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A Malindi court set aside an order for a joint land survey because the defendants were never heard before it was made, affirming Kenya's constitutional right to a fair hearing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi on a notice of motion dated 24th October 2025 in which the defendants sought setting aside of order number 2 granted ex parte by the court on 15th October 2025 in an application dated 13th October 2025. That order had directed the plaintiffs and defendants to jointly appoint a registered surveyor and commission a survey, within 14 days, over a 40-acre portion of land in the Kitangani-Takaungu Adjudication Section, allegedly excised from Mazrui ancestral lands and allocated to Usama Nabhan, from which plot number 676 (about 4.3 acres) was said to derive. The defendants argued the order was granted without affording them a hearing, would affect numerous non-parties occupying and holding interests in the 40 acres, and exceeded the pleadings, which concerned only plot 676. The court confirmed from the record that no response had been filed when the order issued, and declined to delve into the merits of either the pending application or the plaintiffs' submissions. Applying Article 50(1) of the Constitution, the court held that the right to be heard before a decision is made is constitutional and cannot be taken away arbitrarily, and that in the absence of the defendants' counsel the court may have erred in granting the order. Finding serious allegations that non-parties would be affected by the survey, the court set aside the 15th October 2025 order and granted the application dated 24th October 2025 in terms of prayer 3, directing mention on 14th May 2026 for directions on the hearing of the application dated 13th October 2025. No costs order was made and no authorities were cited.

Key legal issues

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Whether an ex parte interim order compelling a joint survey of land could stand where issued without hearing the defendant

Holding

The order was set aside because the defendants were not heard before it was made, contrary to Article 50(1), and because allegations that non-parties would be affected by the survey required an inter partes hearing

Reasoning

The court perused the record and confirmed no response had been filed when the order issued. Although the order appeared to be a mere procedural survey step to expedite disposal, the affidavit evidence and grounds suggested otherwise: serious allegations were made that persons who are not parties would be affected. Those issues were for the inter partes hearing of the application dated 13th October 2025.

p. 2

Legal principles established

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  • The right to be heard before a decision is made is a constitutional right under Article 50(1) and cannot be taken away arbitrarily

Court orders

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  1. 1.The order number 2 granted on 15th October 2025 in the Notice of Motion dated 13th October 2025 is set aside in so far as it directed a survey without hearing the defendants
  2. 2.The application dated 24th October 2025 is granted in terms of prayer number 3 thereof
  3. 3.Mention on 14th May 2026 for directions on the hearing of the application dated 13th October 2025

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
Jurisdiction invoked
Article 50(1) of the Constitution (fair hearing); inherent power of the court to set aside its own ex parte interim orders

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, "Freudenthal & another v Ryrie & another (Environment and Land Case E051 of 2023) [2026] KEELC 2468 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2468/eng@2026-04-28

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