Ojwang v Ghelani & 4 others (Environment and Land Case 232 of 2013) [2026] KEELC 3191 (KLR)
The bottom line
#The Environment and Land Court in Kisumu refused to reopen a 2021 land judgment because the applicant had earlier admitted the plaintiff's claim and showed no real defence.
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 1st Defendant demonstrated sufficient grounds for setting aside the judgment delivered on 7th December 2021
- 2.Whether the 1st Defendant has a defence with triable issues warranting reopening of the case
- 3.Whether the Supporting Affidavit sworn under an allegedly irregular Power of Attorney vitiated the application
Key legal issues
#Whether the judgment of 7th December 2021 should be set aside for lack of service
The application was dismissed because non-service after the judgment of Justice Kibunja was not accompanied by a defence with triable issues, and the 1st Defendant had earlier filed a statement of admission aligning his case with the Plaintiff's.
The court noted the 1st Defendant was served with summons and filed a Statement of Admission dated 25th October 2013 agreeing with the Plaintiff's claim that the land be subdivided and the dealings of the 2nd–5th Defendants be cancelled. The court found the 1st Defendant's case was 'one and the same as the Plaintiff's', that he filed no counterclaim despite learning of the changed registrations, and that no defence with triable issues was demonstrated. The judgment of 7th December 2021 dismissed the Plaintiff's suit with costs.
The requirement of sufficient grounds and a triable defence for setting aside
The court applied the principle that setting aside requires sufficient grounds plus a good defence raising triable issues, and that neither was established.
Relying on the framework urged by the parties, the court held the Applicant had to show sufficient grounds and a good defence with triable issues. Although non-service was asserted and uncontroverted, the court found the grounds not demonstrated because the substantive defence was an admission of the Plaintiff's case, and reopening would not advance any triable issue.
Legal principles established
#- An applicant seeking to set aside a judgment must demonstrate sufficient grounds and a good defence raising triable issues
Court orders
#- 1.The application dated 4th November 2024 is dismissed
- 2.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent power of the court under sections 1A, 1B and 3A of the Civil Procedure Act and Order 5 rules 15, 12 and 7 of the Civil Procedure Rules (invoked in the application and submissions)
Relief refused
#Setting aside the judgment delivered on 7th December 2021
Grounds for setting aside were not demonstrated and no defence with triable issues was shown
Leave to file responding pleadings to the pleadings of the 2nd – 6th Defendants and to adduce evidence
Flowed from the refused prayer to set aside the judgment; the 1st Defendant had earlier filed a statement of admission aligned with the Plaintiff's case
Costs
Each party to bear its own costs of the application.
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 grounds for setting aside a judgment are that the Applicant must demonstrate sufficient grounds and that he/she has a good defence that raises triable issues.
I find that the grounds for setting aside the judgment herein have not been demonstrated. The application is dismissed. Each party to bear its own costs of the application.
In other words, the 1st Defendant’s case was one and the same as the Plaintifi’s.
Issues in the judgment
#The date of Justice Kibunja's judgment is given inconsistently as 16th May 2016, 18th May 2016 and 18th June 2016 in different passages
The 1st Defendant's Statement of Admission date is given inconsistently as 25th October 2013 and 25th October 2025
The 3rd/4th Defendants' joint statement of Defence is dated 20th February 2017 although the suit was said to have been filed on 17th September 2013 - internally unexplained
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang v Ghelani & 4 others (Environment and Land Case 232 of 2013) [2026] KEELC 3191 (KLR)", Case Analysis (2026). Not stated on the face of the ruling (ELC suit, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3191/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.