Kisumu Pamoja Housing Cooperative Society Limited v Maeri & another (Environment and Land Case E012 of 2024) [2026] KEELC 3192 (KLR)
The bottom line
#A Kisumu land court set aside an ex parte judgment and let new parties join, prioritising the right to a 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 1st Defendant gave a satisfactory explanation for non-participation, has a defence raising triable issues, and whether the plaintiff would suffer prejudice if the ex parte judgment against him is set aside
- 2.Whether the 2nd Defendant was properly served with summons and pleadings and whether the ex parte judgment against him should be set aside
- 3.Whether the proposed Interested Parties who were served with eviction warrants but were not parties to the suit qualify for joinder and for setting aside of the eviction orders and ex parte proceedings
Key legal issues
#Setting aside ex parte judgment against the 1st Defendant
Application allowed; although the explanation for non-participation was unsatisfactory, the draft defence raised triable issues and the plaintiff could be compensated by costs
The 1st Defendant acknowledged service and blamed his advocate's failure to file responses and attend court. The court found the explanation unsatisfactory because the party retains the duty to follow up his case. However, the draft defence denying plaintiff's ownership and asserting occupation since 2014 raised triable issues, and any prejudice could be met by thrown away costs, warranting setting aside the ex parte judgment.
Setting aside ex parte judgment against the 2nd Defendant
Application allowed; service was proved but the draft defence raised triable issues meriting a hearing
The 2nd Defendant claimed he was never served and only learnt of the suit when a warrant of attachment was served. An uncontroverted Affidavit of Service explained service and the Applicant did not cross-examine the process server, so service was held effective. Nonetheless the draft defence denying any interest in the suit land raised triable issues, and the applicant ought to be allowed to ventilate them.
Joinder of proposed Interested Parties and setting aside eviction orders
Applications by the four applicants and Abonyo Edwin Jacob allowed; joined as 1st to 5th Interested Parties, with restraining orders applying to them
The applicants claimed allocation of portions of the suit land by the Municipal Council of Kisumu and that they were served with eviction warrants without being parties. The court found it not denied they were served with eviction warrants yet were not parties, and that they demonstrated a legal stake in the suit whose outcome would affect them, qualifying them for joinder as Interested Parties.
Legal principles established
#- Grounds for setting aside an ex parte judgment are satisfactory explanation of non-participation, a defence raising triable issues, and absence of prejudice to the respondent
- A party sued retains an obligation to follow up the progress of its own case regardless of instructions to counsel
- A defendant who demonstrates a defence raising triable issues ought not to be denied a hearing; the plaintiff may be compensated by costs
- A person served with eviction warrants though not a party to the suit, with a legal stake in the outcome, qualifies for joinder as an Interested Party
Court orders
#- 1.Leave for the firm of Kouko & Odero Advocates LLP to come on record for the 1st Defendant, with pleadings and documents deemed properly filed
- 2.The judgment dated 26/6/2025 set aside
- 3.The Defendants allowed to file and serve their defence(s) and compliance documents within 14 days
- 4.The Plaintiff to file a response and further documents within 14 days of service
- 5.Defendants restrained from entry onto the suit land and plaintiff restrained from carrying out developments or alienating any part of the suit land pending hearing and determination of the suit
- 6.Thrown away costs of Kshs. 100,000/- awarded to the plaintiff, each Defendant paying Kshs 50,000 thereof within 45 days
- 7.Applicants in the applications dated 30/1/2026 and 3/3/2026 joined as 1st to 5th Interested Parties
- 8.Interested Parties to file and serve their documents within 21 days; Plaintiff and Defendants to respond within 14 days of service
- 9.Restraining orders extended to the Interested Parties, who are restrained from entry onto the suit land pending hearing and determination of the suit
- 10.Each party to bear its own costs of the applications dated 30/1/2026 and 3/3/2026
- 11.Suit to be mentioned on 7/7/2026 before Court 1 to confirm compliance and for directions on the disposal of the Objection dated 23/2/2026 and the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 22 Rules 6, 22 and 18(1)(a), Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 3A, 34 and 63(e) of the Civil Procedure Act; Articles 159(2)(a) and 50 of the Constitution of Kenya, 2010
Relief refused
#Setting aside of the ex parte judgment on the ground of non-service against the 2nd Defendant
The court found service was properly effected by an unchallenged Affidavit of Service and the 2nd Defendant did not seek to cross-examine the process server; the explanation of non-participation was not plausible, though judgment was still set aside on the strength of triable issues
Costs
Thrown away costs of Kshs. 100,000/- awarded to the plaintiff payable by each of the Defendants (Kshs 50,000 each) within 45 days; on the Interested Parties' applications, each party shall bear its own costs of the applications.
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 applications dated 20/8/2025 and 7/11/2025 are hereby allowed as follows: a. The judgment dated 26/6/2025 herein is set aside.
The applicants in both applications are joined in the suit as Interested Parties: the applicants in the application dated 30/1/2026 are the 1st to 4th Interested Parties, and the applicant in the application dated 3/3/2026, the 5th Interested Party.
Thrown away costs of Kshs. 100,000/- is awarded to the plaintiff to be paid by each of the Defendants, paying Kshs 50,000 thereof within 45 days hereof.
Each party shall bear its own costs of the applications.
While it is true that the plaintiff, having prosecuted the suit to the end, should be allowed to enjoy the fruits of the ensuing judgment, the applicant, having demonstrated that he has a defence that raises triable issues, ought not to be denied a hearing.
Issues in the judgment
#The judgment recites the hearing date as 3rd February, 2024 while the matter was fixed for hearing on 3rd December, 2024, an apparent internal inconsistency in dates
The Replying Affidavit opposing the application dated 30th January, 2026 is stated to have been sworn on 2nd February 2006, an apparent typographical error for 2026
The 2nd Defendant's written submissions are dated 3rd February, 2025 although the application they respond to is dated 7th November, 2025, an apparent typographical error
The 1st Defendant is never named in the judgment, unlike the 2nd Defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisumu Pamoja Housing Cooperative Society Limited v Maeri & another (Environment and Land Case E012 of 2024) [2026] KEELC 3192 (KLR)", Case Analysis (2026). ELC LC E012/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3192/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.