Makau v Mbira (Originating Summons 185 of 2018) [2026] KEELC 4627 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default land judgment, ruling that service by newspaper and post wasn't effective enough to deny the defendant a fair 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 Defendant/Applicant was properly served with the Originating Summons in accordance with the provision of Law
- 2.Whether the court should exercise discretion to set aside the Ex-Parte Judgment
- 3.Whether the Plaintiff/Respondent has acquired ownership by adverse possession
- 4.Whether allegations of fraud are sustainable
- 5.Who should bear the costs of the Notice of Motion application dated 2nd December, 2022
Key legal issues
#Effectiveness of substituted service
Although service by registered post and newspaper advertisement was effected pursuant to court order, its effectiveness was doubtful given the inconspicuous advertisement, the defendant's residence in Nairobi and Covid-19 movement restrictions; sufficient cause to set aside the judgment was shown.
The court held that substituted service must be assessed in context, not merely on formal compliance. Article 50(1) guarantees fair hearing and the right not to be condemned unheard is a cardinal principle of natural justice. The inconspicuous advertisement, the defendant's residence outside Mombasa and pandemic restrictions meant service may not have effectively notified him, warranting setting aside the judgment under Order 10 Rule 11.
Discretion to set aside ex parte judgment
The defendant explained his absence as excusable mistake rather than deliberate evasion, entitling him to exercise of the court's discretion under Order 10 Rule 11 to set aside the judgment and defend the suit.
Guided by Shah v Mbogo, Chemwolo v Kubede, CMC Holdings v Nzioki and James Kanyiita Nderitu, the court distinguished regular from irregular default judgments, held the discretion exists to avoid injustice from excusable mistake, found the defendant's conduct inadvertent rather than evasive, and held prejudice to the plaintiff could be compensated by costs.
Adverse possession
Whether the plaintiff acquired ownership by adverse possession is a triable issue: conflicting photographic evidence of vacancy in 2019 against claimed 25-year occupation cannot be resolved summarily.
Sections 7 and 38 of the Limitation of Actions Act and the principles in Kweyu v Omuto and Mbira v Gachuhi require actual, open, continuous, exclusive and adverse possession for twelve years. The defendant's photographs showing vacancy as late as March 2019 and permissive use by a neighbour cast doubt on the plaintiff's claim; the contradiction requires full hearing with oral testimony.
Allegations of fraud
The fraud allegations are sustainable as triable issues; fraud must be specifically pleaded and strictly proved and cannot be determined at the interlocutory stage.
Under Section 26(1) of the Land Registration Act a title is indefeasible except where acquired by fraud or misrepresentation or illegally, unprocedurally or through a corrupt scheme. Citing Arthi Highway Developers and Samuel Kamene, the court held that if proven, misrepresentation of occupation would impeach the title, but strict proof through oral testimony is required.
Legal principles established
#- The substratum of service is not merely formal compliance but whether it was reasonably calculated to bring the proceedings to the attention of the defendant.
- A default judgment entered against a defendant not properly served is irregular and must be set aside ex debito justitiae; a regular default judgment may be set aside in the court's discretion under Order 10 Rule 11.
Court orders
#- 1.The Notice of Motion dated 2nd December, 2022 is found to have merit and is allowed
- 2.The Judgment delivered on 23rd April, 2020 in favour of the Plaintiff/Respondent is set aside pursuant to Order 10 Rule 11 of the Civil Procedure Rules, 2010
- 3.Sufficient cause demonstrated by the Defendant/Applicant constitutes excusable mistake and inadvertence
- 4.The Defendant has raised triable issues on adverse possession and fraud to be determined at a full hearing
- 5.Defendant granted leave to file and serve his Statement of Defence and/or Counter-Claim within twenty-one (21) days, and the matter to proceed to hearing on the merits
- 6.Mention on 5th October, 2026 for compliance and further directions before Justice Olola, ELC, Mombasa
- 7.Costs of the application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment & Land Court Act, No. 19 of 2011; Civil Procedure Act, Cap. 21 (Order 10 Rule 11, Order 12 Rule 7, Section 3A)
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.
THAT the Judgment delivered on 23rd April, 2020 in favour of the Plaintifi/Respondent, Peter Ngove Makau be and is hereby set aside pursuant to the Court’s discretion under Order 10 Rule 11 of the Civil Procedure Rules, 2010.
THAT the Defendant/Applicant be and is hereby granted leave to file and serve his Statement of Defence and/or Counter - Claim and fully comply pursuant to the provision of Orders 7 and 11 of the Civil Procedure Rules, 2010 WITHIN TWENTY - ONE (21) DAYS from the date hereof, and the matter shall thereafter proceed to hearing on the merits.
THAT the costs of the Notice of Motion application dated 2nd December, 2022 shall be in the cause, to abide the final outcome of the suit, in line with Section 27 of the Civil Procedure Act, Cap. 21.
The right not to be condemned unheard is a cardinal principle of natural justice, without which the rule of law would be without equilibrium.
The jurisprudence underscores that service must be efiective, not illusory.
Issues in the judgment
#The judgment is dated 17th July 2026 yet sets down a mention for 5th October 2026 and refers to an application filed 2nd December 2022 ruled on with a replying affidavit of 7th November 2024; the sequence of dates (judgment delivered before a scheduled mention) is internally anomalous.
The defendant's submissions describe the application as dated 2nd December 2024 while the motion itself and all other references state 2nd December 2022.
The plaintiff's submissions state judgment/decree issued on 17th June 2020 while the judgment being set aside is stated throughout as delivered on 23rd April 2020.
The plaintiff's submissions date the replying affidavit as 23rd October 2023, while the judgment itself records it as sworn on 7th November 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau v Mbira (Originating Summons 185 of 2018) [2026] KEELC 4627 (KLR)", Case Analysis (2026). ELC No. 185 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4627/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.