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ELCAllowedELCA E037 OF 2022

Board of Management (Governors) Workers High School v Warui & 3 others (Environment and Land Appeal E037 of 2022) [2026] KEELC 4145 (KLR)

Environment and Land Court
2 July 2026
LKL Komingoi
2,127 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a default judgment against a school, ruling land disputes must be decided on their merits, not on a lawyer's missed hearing date.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nakuru against a ruling by Honorable K.I. Orenge, Principal Magistrate, delivered on 26th October 2022 in Nakuru CMELC Case No. 372 of 2018, dismissing the Appellant's application dated 21st July 2022 seeking to set aside an ex parte judgment of 11th March 2022 by which Kshs. 300,000 general damages for trespass were entered against it. The Appellant argued that its failure to attend the hearing was due to counsel's inadvertent misdiarization of the date, that the suit involved public property used by a school and thus merited an inter-partes hearing, and that the ruling violated its right to be heard. The 1st Respondent maintained the judgment was regular since the hearing date was fixed by consent, the misdiarization claim was unsubstantiated, and the Appellant only moved after a notice of attachment was served. The sole issue framed was whether the appeal was merited. Applying Order 12 Rule 7 of the Civil Procedure Rules and the settled principles in Attorney General v Small Wonder Ltd, and noting the Appellant had entered appearance and been active, the court held it would only be in the interest of justice for the land dispute - an emotive subject possibly involving public land - to be determined on its merits. The appeal was allowed, the ex parte judgment set aside, the matter remitted for hearing before a magistrate other than K.I. Orege, with costs abiding the outcome of the suit in the lower court.

Questions the Court framed

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

  1. 1.Whether the appeal is merited

Key legal issues

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01

Whether the trial magistrate erred in refusing to set aside the ex parte judgment and proceedings

Holding

The appeal was allowed; the ex parte judgment was set aside so the matter could be heard on its merits

Reasoning

The court applied Order 12 Rule 7 of the Civil Procedure Rules and the settled principles on setting aside default judgments, including that denying a party a hearing should be the last resort. The appellant had entered appearance and been active, showing interest in defending the suit, and the failure to attend was due to counsel's misdiarization. Since the dispute concerned land, which is emotive, justice required the matter be determined on its merits.

p. 12

Legal principles established

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  • Land disputes are emotive and should as far as possible be disposed of on their merits
  • A mistake by counsel should not ordinarily deprive a party of a hearing on the merits; the default can be cured by costs absent fraud or intent to overreach

Court orders

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  1. 1.The ex parte judgment is set aside
  2. 2.The matter to proceed before another Magistrate other than K. I. Orege (PM)
  3. 3.The costs to abide the outcome of the suit in the Lower Court

The bench

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

LK
majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Nakuru
Nakuru CMELC Case No. 372 of 2018
Jurisdiction invoked
First appellate jurisdiction over appeals from the subordinate court (Environment and Land Court)

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.

In conclusion I find merit in the appeal.
p. 13Outcome of the appeal
The exparte judgment is hereby set aside. The matter do proceed before another Magistrate other than K. I Orege ( PM).
p. 13Final orders
The costs do abide the outcome of the suit in the Lower Court.
p. 13Costs
to deny a party a hearing should be the very last resort of a court of justice
p. 11Setting aside default judgments
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
p. 10Order 12 Rule 7 Civil Procedure Rules

Issues in the judgment

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minor

Judgment date inconsistency: appeal admitted on 17th February 2026 but respondent's submissions are dated 8th May 2026, after the admission date

minor

Trial magistrate's name appears variously as 'K.I. Orenge' and 'K. I Orege' within the same judgment

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, "Board of Management (Governors) Workers High School v Warui & 3 others (Environment and Land Appeal E037 of 2022) [2026] KEELC 4145 (KLR)", Case Analysis (2026). ELCA E037 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4145/eng@2026-07-02

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