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ELCPartially AllowedELC Case No. 259 of 2015· [2026] KEELC 3083 (KLR)

Omer (Suing in his capacity as the administrator of the Estate of Onyando Omer) & another v Aredo & 2 others (Environment and Land Case 259 of 2015) [2026] KEELC 3083 (KLR)

Environment and Land Court
21 May 2026
2,764 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on a Notice of Motion dated 28th July 2025 by an applicant who was the registered owner of land parcel Kisumu/Dago/990 (a subdivision of Kisumu/Dago/509) when the suit was filed in 2015, but was never joined as a party. The 19th November 2021 judgment cancelled his title and reverted the land to the 1st Plaintiff's father, Onyango Omer, without hearing him. The applicant sought an interlocutory injunction, an order of inhibition, setting aside of part of the judgment, joinder as defendant, joinder of his vendor Thomas Nyakundi Manwa, and leave to file a defence and counterclaim. The 1st Plaintiff opposed through grounds of opposition (no replying affidavit was filed), arguing the court was functus officio since the judgment had been executed, that the remedy lay in a fresh suit, and that the application was delayed, exhibited laches and offended finality of litigation. The court found the factual averments uncontroverted: the applicant was the fifth registered owner, his title was cancelled in a suit to which he was not party, and his right to a fair hearing under Article 50(1) of the Constitution was violated. Applying the Supreme Court's decision in Evans Odhiambo Kidero v Ferdinand Ndungu Waititu and the rules of natural justice, the court held it has inherent power to set aside its orders for the ends of justice, and that execution of a judgment cannot fetter that power; the setting aside was ex debito justitiae with no discretion. All the 1st Plaintiff's grounds were rejected. The court set aside the part of the 2021 judgment relating to Kisumu/Dago/990 with consequential actions, joined the applicant as 2nd Defendant, issued an order of inhibition pending a fresh hearing of ownership, and directed amendment of the plaint within 15 days. The prayer to join Thomas Nyakundi Manwa was refused as premature. Costs were made costs in the course.

Key legal issues

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01

Whether the court may set aside part of its executed judgment against a non-party condemned unheard

Holding

Yes - the court has inherent jurisdiction to set aside its orders and decrees for the ends of justice, and execution of the judgment does not oust that jurisdiction; the setting aside is a matter of right (ex debito justitiae) where a party was condemned unheard

Reasoning

The court found as uncontroverted that the applicant was the registered owner of the suit property when the suit was filed, that he was not joined although his title was challenged, and that the 19th November 2021 judgment cancelled his title and reverted the land without hearing him. The 1st Plaintiff's grounds - functus officio, execution, delay, laches and finality of litigation - were all rejected. Since Article 50(1) guarantees a fair hearing and the applicant's right to be heard was violated, the court held it has jurisdiction to correct the wrong and no discretion in the matter.

p. 12
02

Whether the applicant's right to a fair hearing under Article 50(1) was violated

Holding

Yes - a dispute over the ownership of the suit property could only be fairly determined if the registered owner at the time of filing was made a party and heard

Reasoning

Relying on Article 50(1) of the Constitution, the Supreme Court's decision in Evans Odhiambo Kidero v Ferdinand Ndungu Waititu, and Halsbury's Laws of England on the rules of natural justice, the court held that the 1st Plaintiff had a right to litigate his dispute but it had to be determined fairly, which required joinder and hearing of the applicant, the registered owner. Because the applicant was not heard, his right to a hearing was violated; the 1st Plaintiff did not dispute this fact in his grounds of opposition.

p. 12

Legal principles established

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  • A person condemned unheard whose title was cancelled in a suit to which he was not a party is entitled as of right (ex debito justitiae) to have the judgment set aside; execution of the judgment does not fetter the court's inherent power to undo an injustice
  • Fair hearing incorporates the rules of natural justice, including audi alteram partem

Court orders

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  1. 1.Part of the judgment delivered on 19th November 2021, relating to land parcel Title No. Kisumu/Dago/990 (finding it was created and transferred to the applicant illegally and compelling the 1st Defendant to nullify its register and revert the property to Onyango Omer), is set aside together with any actions or proceedings taken pursuant thereto
  2. 2.The applicant is joined in the suit as the 2nd Defendant
  3. 3.An order of inhibition is issued inhibiting any other or further dealings with land parcel Title No. Kisumu/Dago/990 pending the hearing afresh of the dispute over ownership of the property
  4. 4.The Plaintiff shall further amend the plaint, strike out the names of parties already struck out, and add the applicant as the 2nd Defendant within 15 days; the applicant may respond to the further amended plaint within 15 days of service
  5. 5.The costs of the application shall be in the course
Jurisdiction invoked
Articles 40(2)(a) and (b), 48, 50 and 25(c) of the Constitution of Kenya 2010 and the inherent power of the court to set aside its orders and decrees for the ends of justice; Order 1 rule 10(2), Order 9 rule 9, Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules

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, "Omer (Suing in his capacity as the administrator of the Estate of Onyando Omer) & another v Aredo & 2 others (Environment and Land Case 259 of 2015) [2026] KEELC 3083 (KLR)", Case Analysis (2026). ELC Case No. 259 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3083/eng@2026-05-21

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