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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 2941 (KLR)

Lokoel v Aberun & another (Environment and Land Appeal E001 of 2024) [2026] KEELC 2941 (KLR)

Environment and Land Court
14 May 2026
1,708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a land judgment won without properly serving the other side, and refused to punish him for contempt because he never knew about it.

What this practically means

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Executive summary

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The Environment and Land Court at Kitale (C.K. Nzili, J) ruled on two applications arising from an appeal determined by judgment of 18/6/2025 concerning plot No. 507. The first application, dated 3/12/2025 by Wilson Ekaale Lokoel, sought a finding that the respondent was in contempt of the orders of 18/6/2025, alleging he remained in possession, use and occupation of the plot despite service of the judgment. The second application, dated 16/12/2025 by Billy Aberun, sought stay of execution of the judgment, its setting aside ex debito justitiae, and a rehearing of the appeal de novo on the ground that the appeal was heard and determined without service upon him of the memorandum of appeal, record of appeal, written submissions or hearing notice, and without compliance with the court's directions of 19/11/2024 and 25/3/2025. The court framed four issues. Relying on Order 42 of the Civil Procedure Rules and Pere v Osoi, it found that evidence of service of court processes was lacking and that the onus of proving service lay on the appellant; the respondent was therefore condemned unheard. The second application was allowed with no order as to costs, with the judgment of 18/6/2025 set aside and the appeal to be reheard de novo. On contempt, applying the ingredients set out in Kioko v Muli and Shimmers Plaza, the court held that the applicant failed to demonstrate the respondent's knowledge of the judgment and its binding nature, and dismissed the contempt application with costs. The ruling was delivered at Kitale on 14th May 2026.

Key legal issues

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01

Whether the respondent was condemned unheard in the hearing and determination of the appeal

Holding

Yes - the appeal was heard and determined without proof of service of the memorandum of appeal, record of appeal, written submissions or hearing notice on the respondent, so the judgment of 18/6/2025 was set aside and the appeal ordered reheard de novo.

Reasoning

Order 42 Rules 11, 13, 16, 17 and 20 of the Civil Procedure Rules require service of the memorandum of appeal, notice of directions and hearing notice, failing which an ex parte hearing is possible only upon due service. The court record showed directions that the respondent be served, but there was no evidence the appellant complied. Pere v Osoi places the onus of proving service on the appellant where the respondent defaults in appearance. Without evidence of service, the respondent was condemned unheard, denying him a fair hearing, justifying setting aside ex debito justitiae and a rehearing.

p. 3
02

Whether the respondent is guilty of contempt of the orders of 18/6/2025

Holding

No - contempt was not proven to the required standard because the applicant failed to demonstrate the respondent's knowledge of the judgment and its binding nature.

Reasoning

Contempt requires clear, unambiguous and binding terms of the order, knowledge or proper notice of the order, and breach of its terms. The respondent deponed that he did not participate in the appeal and only learned of the judgment on 16/10/2025 when served. Following Shimmers Plaza and Wekesa v Munialo, knowledge of the outcome and its binding nature had to be demonstrated by the applicant, which was not done. The contempt application was accordingly dismissed with costs.

p. 4

Legal principles established

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  • Where a respondent does not appear at the hearing of an appeal, the onus is on the appellant to prove service of the court processes and proceedings.
  • Ingredients of contempt: the terms of the order must be clear, unambiguous and binding; the defendant must have knowledge or proper notice of the order; and there must be a breach of the terms of the order.
  • Knowledge of a judgment's outcome and its binding nature must be demonstrated by the applicant in contempt proceedings.
  • Sufficient cause for non-appearance rests on the person seeking indulgence of the court to show what prevented him from appearing.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 18/6/2025 and all consequential orders
  2. 2.Judgment of 18/6/2025 set aside ex debito justitiae
  3. 3.Directions for rehearing the appeal de novo on merit
  4. 4.Application dated 16/12/2025 allowed with no order as to costs
  5. 5.Contempt application dated 3/12/2025 dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 11
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure RulesOrder 42 Rule 16
  • Civil Procedure RulesOrder 42 Rule 17
  • Civil Procedure RulesOrder 42 Rule 20
  • Civil Procedure RulesOrder 42 Rule 23
  • Civil Procedure RulesOrder 5
  • Civil Procedure ActSection 79B
  • Judicature ActSection 5
  • Civil Procedure ActSection 63(c)

Cases cited (18)

  • Shimmers Plaza Ltd -vs- National Bank of Kenya Ltd
    [2015] KECA 945 [KLR]
  • Samuel M.N. Mweru & Others -vs- National Land Commision & Others
    [2020] eKLR / [2020] KEHC 9233 (KLR)
  • Hadkinson -vs- Hadkinson
    [1952] 2 ALLER 567
  • Michael Sistu Mwaura Kamau vs Director of Public Prosecutions & another
    [2018] eKLR
  • Econet Wireless Kenya Ltd -vs- Minister for Information & Communication of (K)
    [2005] eKLR
  • Rose Nafula Wanyama -vs- Nusra Nasamba Chibanga & Another
    [2019] KECA 192 [KLR]
  • Fred Matiang'i, the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government -vs- Miguna Miguna & Others
    [2018] eKLR
  • Republic -vs- Ahmed Abolfathi Mohammed & Another
    [2019] eKLR
  • Mutitika -vs- Baharini Farm Limited
    [1985] KLR 229
  • Amir Suleiman -vs- Amboseli Resort Limited
    [2004] eKLR
  • Sheila Cassatt Issenberg & another -vs- Antony Machatha Kinyanjui
    [2021] KEHC 5692 (KLR)
  • Carey -vs- Laiken
    [2015 SCC 17]
  • Pere -vs- Osoi
    Civil Appeal Appl. No. E008 of 2019 [2025] KECA 1417 [KLR]
  • M'Mbogo -vs- Mohamed
    Civil Appeal Appl. No. E079 of 2020 [2023] KECA 344 [KLR]
  • Hamida Yaroi Shek Nuri -vs- Faith Tumaini Kombe & Others
    [2019] eKLR
  • Kioko & 6 Others -vs- Muli & Others
    Civil Appeal No. 528 of 2019 [2026] KECA 693 [KLR]
  • Wekesa & Others -vs- Munialo
    [2025] KECA 679 [KLR]
  • Samuel M.N. Mweru & Others -vs- National Land Commission & 2 Others
    [2010] eKLR
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Act and Order 42 of the Civil Procedure Rules (appeal from a subordinate court); contempt jurisdiction under Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act

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, "Lokoel v Aberun & another (Environment and Land Appeal E001 of 2024) [2026] KEELC 2941 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2941/eng@2026-05-14

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