M/s Njeri's Agencies Ltd v Thuo & 2 others (Environment and Land Case E044 of 2024) [2026] KEELC 5260 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a defendant who missed court deadlines to file her defence late, but made her pay significant costs.
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 Notice of Motion application dated 30th March, 2026 is merited?
- 2.Whether the parties herein are entitled to the reliefs sought.
- 3.Who bears the costs of the application dated 30th March, 2026?
Key legal issues
#Whether the ex parte proceedings should be set aside to allow the 1st Defendant to file a defence out of time
Application allowed; the court invoked the overriding objective and the right to a fair hearing under Article 50(1) to permit the defendant to defend the suit on its merits, notwithstanding issues of service.
The court noted judgment was yet to be delivered and that the applicant relied on the wrong provisions, but treated the substance as an application to set aside proceedings. Considering the volatile nature of land disputes, the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Environment & Land Courts Act, the court exercised discretion to allow the application in the interest of justice and the right to a fair hearing.
Who bears the costs of the application
Costs of the application awarded to the Plaintiff/Respondent, with thrown away costs of Kshs. 150,000.00 payable by the Applicant.
Costs follow the event under Section 27 of the Civil Procedure Act, exercised as a judicial discretion. Because the application was necessitated by the Applicant's failure to file a defence within time, the Applicant was condemned to meet the costs, and thrown away costs were awarded to compensate the Plaintiff for expenses toward the aborted hearing.
Legal principles established
#- The court has an unfettered discretion to set aside judgment or proceedings on such terms as it deems fit and just.
- The overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it.
- No one should be condemned unheard; the decision not to hear a litigant is punitive and undertaken only in extreme circumstances.
Court orders
#- 1.The Notice of Motion application by the 1st Defendant/Applicant found to be meritorious and allowed
- 2.The Defendant/Applicant granted Twenty One (21) Days leave to file and serve the Statement of Defence, witness Statement(s) and bundle of documents out of time pursuant to Order 50 Rules 6 & 7 of the Civil Procedure Rules, 2010
- 3.The Plaintiff granted Fourteen (14) Days corresponding leave to file a reply to Defence and any further documents if need be
- 4.The 1st Defendant/Applicant to pay the Plaintiff/Respondent Kshs. 150,000.00 as thrown away costs within Thirty (30) Days from the date of the Ruling
- 5.Mention on 19th October, 2026 for conducting a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010; hearing on 1st February, 2027 ELC No. 1, Kwale preferably through physical means
- 6.Costs of the application awarded to the Plaintiff/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 40, 50(1) and 159(2) of the Constitution of Kenya, 2010
Relief refused
#Setting aside of the entire proceedings
Judgment was yet to be delivered, so the court treated the application as one for setting aside ex parte proceedings and allowing the defendant to file a defence; the application succeeded on that basis with the court noting reliance on wrong provisions
Costs of the application to the Applicant
Costs of the application awarded to the Plaintiff/Respondent because the application was necessitated by the Applicant's failure to file a defence within time
Costs
Costs of the application dated 30th March, 2026 awarded to the Plaintiff/Respondent; in addition, the 1st Defendant/Applicant to pay the Plaintiff/Respondent Kshs. 150,000.00 as thrown away costs within 30 days.
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.
I hereby exercise discretion and invoke the overriding objective of the law in civil cases as stipulated and allow the application by the Applicant.
It is my view that in the interest of justice and to guard the litigants right to a fair hearing, it is safe to grant the orders sought pending the hearing and determination of the suit.
That the Notice of Motion application dated 13th December, 2025 by the 1st Defendant/ Applicant be and is hereby found to be meritorious thus allowed.
That the Defendant/Applicant be and is hereby granted Twenty One (21) Days Leave from the date of the delivery of this Ruling to fully comply with the provision of Orders 7 and 11 of the Civil Procedure Rules, 2010
That costs of the application awarded to the Plaintifi/Respondent.
Issues in the judgment
#Discrepancy in the date of the application allowed: the application before the court is dated 30th March, 2026 but the disposition refers to a different date
Issue (b) framed as entitlement to reliefs but the ruling's heading for the costs issue re-labels issue (b) inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M/s Njeri's Agencies Ltd v Thuo & 2 others (Environment and Land Case E044 of 2024) [2026] KEELC 5260 (KLR)", Case Analysis (2026). ELC No. 1 of 2024 (Kwale) — application dated 30th March, 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5260/eng@2026-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.