Freudenthal & another v Ryrie & another (Environment and Land Case E051 of 2023) [2026] KEELC 2468 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the interim order granted on 15th October 2025 directing a joint survey of the 40-acre portion should be set aside for having been issued without hearing the defendants
- 2.Whether ex parte interim orders compelling substantive action affecting non-parties ought to stand
Key legal issues
#Whether an ex parte interim order compelling a joint survey of land could stand where issued without hearing the defendant
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
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.
Legal principles established
#- 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
#- 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.The application dated 24th October 2025 is granted in terms of prayer number 3 thereof
- 3.Mention on 14th May 2026 for directions on the hearing of the application dated 13th October 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 50(1) of the Constitution (fair hearing); inherent power of the court to set aside its own ex parte interim orders
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.
To be heard before a decision is made the right of every person is a constitutional right under Article 50(1). It cannot be taken away arbitrarily.
It is true that the plaintifi was compelled into the exercised involuntarily by such order and without being heard first and in view of article 50(1) of the Constitution the court may have been in error in granting the same in the absence of the defendant’s counsel.
The application dated 24th of October 2025 therefore has merit and the same is granted in terms of prayer number 3 thereof. This matter shall be mentioned on 14th May 2026 for directions on the hearing of the application dated 13th October 2025.
Issues in the judgment
#The judgment contains multiple typographical/scanning errors, e.g. 'plaintifis' for 'plaintiffs', 'afiording' for 'affording', 'brought numbers 676' for 'plot numbers 676', and inconsistent dates of delivery ('28TH DAY OF APRIL, 2026') against an application said to be dated 24th October 2025
The parties and case number are not identified anywhere in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.