Sospeter Githendu & 2 others (suing as the Registered Officials of Mwingi Court Residents Association) v Peter Kairu Matheri, The Chief Land Registrar, The National Land Commission & The County Government of Nairobi
The bottom line
#A Kenyan landowner who never filed a defence lost his chance to present evidence after the court refused to excuse years of inactivity.
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 Court should set aside its directions and orders issued on 23rd February 2026 closing the Plaintiffs' and 3rd Defendant's case and allow the 1st Defendant to cross-examine the Plaintiffs' and 3rd Defendant's witnesses and present his evidence
Key legal issues
#Whether the 1st Defendant demonstrated sufficient cause to set aside the orders closing the Plaintiffs' and 3rd Defendant's case
No sufficient cause demonstrated; the 1st Defendant was indolent, never filed a defence, and the hearing date was taken by consent in his counsel's presence
The hearing date of 23rd February 2026 was fixed by consent on 9th July 2025 with the 1st Defendant's counsel present. The 1st Defendant entered appearance in March 2024 but never filed a defence, witness statements or documents. Blaming a former associate who left the firm in January 2026 does not excuse the litigant's own inactivity. Equity aids the vigilant, and the discretion to set aside ex parte orders was not properly engaged.
Whether mistake of counsel should be visited upon the 1st Defendant
No - a litigant has a duty to pursue and monitor his own case and cannot rely solely on counsel's mistake where he has been careless and inactive
Relying on Savings and Loans Ltd v Susan Wanjiru Muritu and Tabuche v Tinga, the court held that while counsel's mistake may be excusable, where it is accompanied by the litigant's carelessness and inactivity, refusal to exercise discretion in the litigant's favour is proper. The 1st Defendant's counsel attended court on his behalf, so he could not credibly claim ignorance that no defence had been filed.
Whether a party without pleadings on record can be allowed to adduce evidence and cross-examine
No - a party cannot seek to reopen a case to adduce evidence when he has filed no defence or witness statements
The court found it improper to allow a litigant not committed to his case to adduce evidence absent any defence, documents or witness statements, as this would disadvantage litigants who have diligently prosecuted their cases and violate the fairness and equality of arms underpinning witness statements and document exchange.
Legal principles established
#- Setting aside ex parte orders is discretionary and requires demonstration of sufficient cause
- A case belongs to the litigant, not the advocate; a litigant must be vigilant and cannot simply blame counsel
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 29th May 2026 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land LR No. 209/6434/52
Relief refused
#Discharge/vacate/set aside the orders of 23rd February 2026 closing the Plaintiffs' and 3rd Defendant's case
1st Defendant did not demonstrate sufficient cause; he was indolent and never filed a defence
Discharge orders of 30th April 2026 directing filing of submissions
Application dismissed in its entirety
Orders for cross-examination of Plaintiffs' and 3rd Defendant's witnesses
No defence or witness statements on record; discretion not exercised in favour of an indolent litigant
Orders allowing the 1st Defendant to call witnesses and adduce evidence in his defence
No pleadings or witness statements on record to support adducing evidence
Costs
Application dismissed with costs (costs of the application to the Plaintiffs/opposing parties)
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.
In the circumstances, I am unable to set aside the Orders issued on 23rd February, 2026 and to allow the 1st Defendant to present evidence when he had not even filed a Defence, Documents and witness statements.
In the foregoing, I find the instant Notice of Motion application unmerited and will proceed to dismiss it with costs.
It is trite that cases belong to litigants who have to be vigilant and a party cannot seek to blame a Counsel when he has not been vigilant.
while the mistake of counsel is excusable, if it is accompanied by a litigant's carelessness and inactivity, then the refusal by the court to exercise discretion in favour of such a party cannot be impugned
Issues in the judgment
#Judgment dated 21st September 2026 but recites application dated 29th May 2026 and events of 2026; dates internally consistent but the suit number is of 2018
Replying affidavit deponed by Susan Manyasi (Treasurer) but narrated in male pronouns
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sospeter Githendu & 2 others (suing as the Registered Officials of Mwingi Court Residents Association) v Peter Kairu Matheri, The Chief Land Registrar, The National Land Commission & The County Government of Nairobi", Case Analysis (2026). ELC Case No. 266 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5494/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.