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ELCPartially AllowedNot stated in judgment

Ng’etich & another v National Government Constituency Development Fund Board & 2 others (Environment and Land Case E034 of 2025) [2026] KEELC 3652 (KLR)

Environment and Land Court
11 June 2026
3,060 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside orders made against a company that was never properly served, ruling that an unproven email is not valid service of court documents.

What this practically means

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Executive summary

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This was a ruling on the 3rd defendant's Notice of Motion dated 19th May 2026 in an Environment and Land Court suit at Kapsabet concerning suit property LR No. 7830/228 Nandi Hills. The 3rd defendant, Modern Precast (K) Ltd, a contractor executing a Konza Technopolis Development Authority project on the suit property, sought review and setting aside of orders issued on 27th January 2026 by Ongondo J on the plaintiffs' application dated 25th November 2025 for temporary injunctive relief, on the ground that it was never served with any court process and was thereby denied its right to a fair hearing under Article 50(1). It also sought leave to respond, an inter partes rehearing, and release of certified contract sums. The plaintiffs opposed, asserting valid physical and electronic service evidenced by an affidavit of service sworn 1st December 2025, waiver by acquiescence, and reliance on the presumption of service in Shadrack Arap Baiywo vs Bodi Bach. The 1st and 3rd defendants supported the application. The court found that physical service was refused and that electronic service by ordinary email without an Electronic Delivery Receipt did not satisfy Order 5 Rules 3 and 22B of the Civil Procedure Rules. Applying LSK vs Martin Day, James Kanyiita Nderitu and Chemwolo cases, the court held the 3rd defendant's right to be heard had been breached. It allowed the application in terms of prayers 3, 4 and 5: the orders of 27th January 2026 were set aside, leave granted to file a response within fourteen days, the plaintiffs' application to be heard afresh with the 3rd defendant's participation, status quo as at 27th January 2026 to be maintained, and costs in the cause. The prayer for payment of certified contract sums was declined as premature.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 3rd defendant was duly served with the plaintiffs' originating pleadings and Notice of Motion dated 25th November 2025 before the orders of 27th January 2026 were issued
  2. 2.Whether the 3rd defendant has established entitlement to the orders sought in its application dated 19th May 2026, including setting aside the orders of 27th January 2026
  3. 3.Whether the prayer for release and payment of certified sums under the contract is available to the 3rd defendant at this stage of the suit

Key legal issues

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01

Whether service of the plaintiffs' application on the 3rd defendant was valid

Holding

Service was invalid. Physical service failed and electronic service by ordinary email without an Electronic Delivery Receipt did not comply with Order 5 Rule 22B; the 3rd defendant was denied its right to be heard

Reasoning

The court examined Order 5 Rules 3 and 22B of the Civil Procedure Rules and noted that a process server cannot simply send an email but must secure an Electronic Delivery Receipt to prove receipt. The process server's affidavit showed physical service was refused and email was sent to a gmail address without proof of delivery, falling short of the prescribed modes of service on a corporation.

p. 5
02

Whether the orders of 27th January 2026 issued without service on the 3rd defendant should be set aside

Holding

Yes; the orders were reviewed, set aside and/or discharged because the 3rd defendant was denied its fundamental right to a fair hearing under Article 50(1)

Reasoning

Relying on Article 50(1) and the audi alteram partem principle, and on James Kanyiita Nderitu and Chemwolo cases, the court held the right to be heard is fundamental and orders made in breach of it, as here where the applicant was not properly served, should be set aside ex debito justitiae in the ends of justice.

p. 6
03

Whether the suit itself should be struck out for failure to extract and serve summons within thirty days

Holding

Not struck out; the suit is not hopeless and the parties retain the right to fair trial

Reasoning

Although the court acknowledged Muigai, Arboretum Plaza and Cheruiyot holding that failure to extract and serve summons is a fundamental jurisdictional lapse that can lead to striking out, it applied D.T. Dobie and declined to throw out the suit, finding it not clearly hopeless and salvageable, in line with Articles 25(c) and 50(1).

p. 6
04

Whether the 3rd defendant was entitled to payment of certified sums under its contract at this interlocutory stage

Holding

No; the prayer was declined as premature and a misnomer at this stage of the suit

Reasoning

The court found the prayer for release and payment of sums due under the contract with Konza Technopolis Development Authority to be farfetched in the context of an interlocutory application, since it would pre-empt the substantive fair trial of the matter, and declined it citing Chemwolo and Nderitu cases.

p. 6

Legal principles established

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  • A defendant who has not been duly served with valid summons is entitled to disregard proceedings even if aware of them; appearance without valid service is of no legal effect
  • Service on a corporation must comply with Order 5 Rule 3, and electronic service requires proof of receipt; failure to effect proper service means the court's jurisdiction is not invoked
  • The right to be heard is fundamental and orders made without proper service may be set aside ex debito justitiae

Court orders

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  1. 1.The Orders given on the 27th day of January 2026 are reviewed, set aside and/or discharged on the ground that the 3rd defendant was not properly served and was thereby denied its fundamental right to be heard
  2. 2.The 3rd defendant is granted leave to file its Response to the Plaintiffs' Notice of Motion dated 25th November 2025 within fourteen days from the date of the judgment
  3. 3.The Plaintiffs' Notice of Motion dated 25th November 2025 to be heard afresh with the full participation of the 3rd Defendant
  4. 4.Parties to maintain the status quo obtaining over the suit property LR No. 7830/228 Nandi Hills Town as at 27th January 2026 pending inter-partes hearing and determination of the application
  5. 5.Costs of the application to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 25(c), 50(1) and 159(2)(d) of the Constitution; sections 3 and 13(7) of the Environment and Land Court Act 2015; sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21)

Relief refused

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Release and payment to the 3rd defendant of all certified sums due under Contract Agreement No. KoTDA/JITUMEHUBSCOE/296/2023-2024 (prayer 6)

Premature at this stage of the suit; it would pre-empt the fair trial of the substantive dispute

p. 6

Immediate invitation of the court to decline or discharge injunctive orders against the 3rd defendant on the merits

Not granted on the merits at this stage; the plaintiffs' application is to be heard afresh with the 3rd defendant's participation and status quo maintained

p. 6

Costs

Costs of the application be in the cause.

Quotable passages

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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 Orders given on the 27th day of January 2026 herein, are reviewed, set aside and/or discharged for the reasons that the 3rd defendant was not properly served with the plaintifis' originating pleadings, the Notice of Motion dated 25th November 2025, any supporting afidavits or any Court process prior to the issuance of the said Orders, and was thereby denied its fundamental right to be heard and for the ends of justice.
p. 6Final orders - setting aside of ex parte orders for want of service
The 3rd defendant is granted leave to file its Response to the Plaintifis' Notice of Motion dated 25th November 2025 , within the next fourteen days from this date.
p. 6Final orders - leave to file response
a process server cannot simply send an email to the address of a party to be served but must secure an Electronic Delivery Receipt to prove that the party received the message. Electronic service is an alternative to physical personal service.
p. 5Electronic service under Order 5 Rule 22B
unless prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked.
p. 5Service as prerequisite to invocation of jurisdiction
prayer number 6 for release and payment of sums due and owed under contract agreement is a misnomer in the application in view of the right to fair trial
p. 6Refusal of payment prayer as premature
Costs of the application be in the cause.
p. 6Costs order

Issues in the judgment

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minor

The judgment refers inconsistently to the plaintiffs' Notice of Motion, dating it 25th November 2025 in some passages and 26th November 2025 in the final orders

minor

The applicants' supporting affidavit is described at one point as belonging to the '3rd respondent' rather than the 3rd defendant/applicant

material

The judgment does not state the case number of the suit in which the application was brought, nor the names of the parties on the record, making full identification of the matter and the parties impossible from the judgment alone

minor

The excerpt of Order 5 Rule 1(5) and (6) set out in the judgment includes a passage on rules and timelines that does not correspond to the text of the rule quoted, suggesting an editing or transcription error

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, "Ng’etich & another v National Government Constituency Development Fund Board & 2 others (Environment and Land Case E034 of 2025) [2026] KEELC 3652 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3652/eng@2026-06-11

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