Ruto v Bett (Environment and Land Case 392 of 2013) [2026] KEELC 5314 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a 2017 ex parte land judgment, but only because the defence raised a genuine customary trust claim — and imposed strict conditions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Application has met the threshold for setting aside the Ex Parte Judgment dated 10th October 2017 plus any consequential decree and/or order(s) arising therefrom and set the suit down for hearing de novo
- 2.Which party should shoulder the costs of this Application
Key legal issues
#Whether the Ex Parte Judgment was regular or irregular
Regular. The Applicant was duly served with the hearing notice by process server Silas K. Kandie; his bare denial was not substantiated by cross-examination under Order 19 Rule 2 of the CPR.
The Respondent exhibited a return of service deposing personal service. Service raises a rebuttable presumption; the burden then shifts to the Applicant, who could only discharge it by cross-examining the deponent under Order 19 Rule 2. The Applicant never did so, so his assertions remained mere assertions failing the balance-of-probabilities standard, and service stood unchallenged.
Whether sufficient cause prevented the Applicant from attending the hearing
No. The Applicant's claim that he believed the suit had been abandoned after family negotiations was unsupported by the record, which showed him present in Court on 19th February 2014 after unsuccessful negotiations.
The Applicant contradicted his non-service claim by asserting he thought the matter withdrawn. The record showed both parties attended Court on 19th February 2014, an unsuccessful negotiation report was tabled, and directions were given in their presence. The court found no sufficient cause and held that a party who squandered an opportunity to be heard cannot invoke audi alteram partem.
Whether the inordinate delay of approximately 9 years was explained
Not plausibly explained; the delay offended Article 159(2)(b) and section 1B of the CPA and weighs against setting aside.
The judgment was entered on 10th October 2017 and the Application filed on 9th April 2026, roughly 9 years later. Beyond the disbelieved assertion of presumed abandonment, no explanation was offered. Delay affects witness availability and memory and is a factor against re-opening, per Mbogo v Shah.
Balance of prejudice and whether the defence raises triable issues
The Defence pleaded customary trust, a weighty triable issue; prejudice to the Respondent from re-opening is reparable by costs, while refusal would cause the Applicant irreparable prejudice.
Although the Applicant showed no sufficient cause and was guilty of inordinate delay, this is a land matter between biological brothers over land allegedly handed down generations, in which the defence pleads customary trust. Following Tree Shade Motors and Gupta v Continental Builders, a defence raising even one bona fide triable issue warrants setting aside where the Respondent can be compensated by costs.
Whether, on the whole, it is in the interest of justice to set aside the Ex Parte Judgment
Yes, conditionally. The nature of the land action and the triable issues tilt the overriding interest-of-justice factor in favour of setting aside despite the other adverse findings.
The court applied its tenth, overriding, stand-alone factor: the action is emotive, immovable land alleged to be family ancestral land; the defence raises bona fide triable issues; and personal security threats impelled the Application. Weighing the squandered opportunity and delay against these, the interest of justice favoured a conditional setting aside with the suit heard de novo.
Costs of the Application
The Applicant to pay costs thrown away, assessed at Kshs. 50,000, as costs follow the cause.
The Applicant failed to show sufficient cause, squandered the opportunity to defend, and approached the court after inordinate delay, inflicting undue hardship on the diligent Respondent. Although family members, the general principle that costs follow the cause applied, departure being justified only by the conditional setting aside in the interest of justice.
Legal principles established
#- The determinative test of regular or irregular ex parte proceedings is whether the Applicant had notice of the hearing or proceedings
- If an ex parte judgment was entered irregularly (no proper service), it must be set aside ex debito justitiae and the court has no discretion; if regular, the court retains unfettered discretion governed by the Kanyiita factors
- Affidavit evidence cannot be displaced by mere assertion; a party challenging an affidavit of service must apply under Order 19 Rule 2 of the CPR for cross-examination of the deponent
- Even where service is valid, an ex parte judgment will be set aside if the defence raises even a single bona fide triable issue
- Procedural mis-citation of the applicable rule is excused under Article 159(2)(d) and the overriding objective
- In a regular ex parte judgment, the overriding and broad-based predominant factor is whether, on the whole, it is in the interest of justice to set it aside, turning on the nature of the action and whether the defence raises triable issues
Court orders
#- 1.The Ex Parte Judgment dated 10th October 2017 plus any consequential Order(s) and/or Decree is set aside
- 2.The suit shall be heard de novo
- 3.The Defendant/Applicant to pay the Plaintiff/Respondent costs thrown away assessed at Kshs. 50,000 within 59 days (by 29th September 2026), failing which the setting aside order stands vacated automatically and the file marked closed
- 4.The matter to be heard de novo on priority basis; hearing fixed for 30th September 2026 at 9.00 am
- 5.Parties to file their respective physical Trial Bundles not later than 11th September 2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules read with sections 1A, 1B, 3A of the Civil Procedure Act and Articles 50(1) and 159(2)(d) of the Constitution
Relief refused
#Setting aside as of right (ex debito justitiae) on ground of non-service
The court found the Ex Parte Judgment regular, service having been proved and not rebutted
Unconditional setting aside
Setting aside granted conditionally due to lack of sufficient cause and inordinate delay of approximately 9 years, with costs thrown away payable before hearing de novo
Costs
The Defendant/Applicant to pay the Plaintiff/Respondent costs thrown away assessed at Kshs. 50,000, payable before the hearing de novo; costs of the Application in that sum
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 Ex Parte Judgment dated 10th October 2017 plus any consequential Order(s) and/or Decree, is hereby set aside.
This suit shall be heard de novo.
The Defendant/Applicant is directed to pay the Plaintiff/Respondent costs thrown away assessed at Kshs. 50,000, which shall be paid before the date set for hearing de novo
The simple determinative test is whether the Applicant had notice of the hearing or proceedings.
Affidavit evidence is not displaced by mere assertions, but by causing the summoning of the deponent for cross-examination
Even if service of summons in valid, the judgment will be set aside if defence raises triable issues.
while the Court would exercise its discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake or error it would not assist a person who has deliberately sought to obstruct or delay the course of justice
rules are handmaids of justice
Issues in the judgment
#The disposition misstates the hearing date as '12th July 2020' whereas the hearing was on 12th July 2017 throughout the judgment
Paragraphs 68 and 69 contain truncated, repeated fragments of a passage about Gupta v Continental Builders that was never completed
Numbering of factors in the interest-of-justice analysis repeats item '(v)' twice
Erroneous characterisation of an ex parte judgment being set aside by a judge of coordinate jurisdiction as an appeal in the file reference 'CNO (R)' is unexplained; also the application date stated as '9 th April 2026' appears within a 2013 suit with judgment in 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruto v Bett (Environment and Land Case 392 of 2013) [2026] KEELC 5314 (KLR)", Case Analysis (2026). Eldoret ELCLC Number 392 of 2013 – CNO (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5314/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.