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)
The bottom line
#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 court has jurisdiction and power to set aside part of its own judgment of 19th November 2021 after it had been executed, given that the applicant was not a party to the suit
- 2.Whether the applicant's right to a fair hearing under Article 50(1) of the Constitution was violated by the cancellation of his title in a suit to which he was not joined
- 3.Whether the applicant should be joined to the suit as a defendant and allowed to file his defence and counterclaim
- 4.Whether an order of inhibition should issue in respect of the suit property pending the fresh hearing of the ownership dispute
- 5.Whether Thomas Nyakundi Manwa should be joined to the suit at this stage
Key legal issues
#Whether the court may set aside part of its executed judgment against a non-party condemned unheard
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
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.
Whether the applicant's right to a fair hearing under Article 50(1) was violated
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
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.
Legal principles established
#- 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
#- 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.The applicant is joined in the suit as the 2nd Defendant
- 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.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.The costs of the application shall be in the course
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Joinder of Thomas Nyakundi Manwa (and any other third parties in occupation) to the suit
The court found the prayer premature; the applicant may seek such joinder after joining the suit and filing his pleadings
Costs
The costs of the application shall be in the course.
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.
The court has jurisdiction to correct that wrong. The court exists to do justice. The fact that an unfair judgment has been executed cannot fetter the court's inherent power to undo an injustice.
The applicant is entitled to have the impugned judgment set aside ex debito justitiae. The court has no discretion in the matter.
Part of the judgment delivered herein on 19th November 2021, in which the court made a finding that the land parcel, Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509 was created and transferred to the applicant illegally, and compelled the 1st Defendant to nullify its register and revert the property to the name of the Plaintiff’s father, Onyango Omer, is set aside together with any actions or proceedings taken pursuant thereto.
An order of inhibition is issued, inhibiting any other or further dealings with the land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509, pending the hearing a fresh of the dispute over the ownership of the property.
Issues in the judgment
#The judgment is dated and delivered on 21st May 2026, roughly six months after the hearing of 11th November 2025, and bears two judicial officers (S. Okong'o who wrote and signed at Nairobi, E. Asati who delivered and countersigned at Kisumu); the coram as printed is unusual but not internally contradictory
The application sought an order of interlocutory injunction as prayer 1, but the court's final orders grant inhibition only and do not expressly rule on the injunction prayer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.