Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnviromental and Land Originating Summons E009 of 2026

Yeri & 15 others v Thethe (Suing as the Legal Representative of the Estate of the Late Kaburuku Ndundi Thethe)

Environment and Land Court
1 October 2026
2,615 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Malindi court gave late-filing land plaintiffs one more chance to be heard, but only after paying the other side Kshs. 30,000.

What this practically means

#

Executive summary

#
This ruling by FM Njoroge J in an adverse possession Originating Summons over Land Provisional Certificate No. CR. 5485/1 Mambrui deals with an interlocutory application by the 1st-3rd, 5th-14th and 16th Plaintiffs seeking leave to file a response and submissions to the Defendant's application dated 7th April 2026, which contains a Notice of Preliminary Objection. The Defendant argues that a prior judgment in Malindi ELC No. 174 of 2012 (consolidated with ELC No. 294 of 2013) was a judgment in rem conclusively settling ownership of the suit property in the estate's favour, barring the present suit under Section 44 of the Evidence Act, and seeks an injunction and striking out of the suit. The Plaintiffs' counsel explained his default by an internet connectivity failure on 28th May 2026. The court found no pleadings had been filed in opposition, noted the Defendant's diligence, but held that the right to a fair hearing is a fundamental constitutional guarantee that cannot be limited, and that any prejudice to the Defendant was adequately remediable through throw-away costs and corresponding leave, the suit being at a nascent stage. The court deferred determination of the application and preliminary objection, granting the Plaintiffs 7 days' leave to file a rejoinder and submissions conditional on paying the Defendant throwaway costs of Kshs. 30,000 within 7 days, with corresponding leave for the Defendant to file supplementary submissions, and deferred the ruling to 18th November 2026. Notably, the 4th and 15th Plaintiffs disclaimed any interest in the suit property and sought dismissal of the suit.

Questions the Court framed

#

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

  1. 1.Whether the Plaintiffs' counsel should be granted leave to file a rejoinder and submissions in response to the Defendant's application dated 7th April 2026 and the Notice of Preliminary Objection contained therein, despite the lapse of earlier opportunities
  2. 2.Whether granting such leave would occasion prejudice to the Defendant

Key legal issues

#
01

Whether leave should be granted to file a response to a preliminary objection after default

Holding

Leave granted on conditions of throwaway costs, because no pleadings opposed the application but fair hearing rights and the nascent stage of the suit favoured deferral

Reasoning

The court acknowledged the Plaintiffs' lack of diligence and the Defendant's diligence, but held that the constitutional guarantee of a fair hearing cannot be limited. Prejudice to the Defendant was remediable by throw-away costs and corresponding leave. The suit, instituted in February 2026, was at a nascent stage, and justice must be administered without undue regard to procedural technicalities.

p. 5
02

Nature and import of preliminary objections

Holding

The court recognised, citing Omondi v National Bank of Kenya, that a meritorious preliminary objection on res judicata or legal competence can conclusively dispose of the suit

Reasoning

The court noted it was alive to the nature of preliminary objections, which if meritorious could conclusively dispose of the adverse possession Originating Summons, citing the observation that res judicata and competence objections are pure points of law well taken as preliminary objections.

p. 4

Legal principles established

#
  • The right to a fair hearing is a fundamental constitutional guarantee that cannot be limited, and courts should ameliorate prejudice rather than shut out a party unheard
  • Prejudice caused by procedural default can be adequately remedied through throw-away costs and corresponding leave, guided by the imperative that justice be administered without undue regard to procedural technicalities

Court orders

#
  1. 1.The 1st, 2nd, 3rd, 5th-14th and 16th Plaintiffs/Respondents granted 7 days' leave to file any rejoinder and submissions to the Defendant's Application and Notice of Preliminary Objection dated 7th April 2026
  2. 2.Leave to take effect only upon payment of throwaway costs of Kshs. 30,000 to the Defendant within 7 days, failing which the orders lapse
  3. 3.Defendant/Applicant granted corresponding leave of 7 days from service to file any supplementary rejoinder or submissions
  4. 4.Evidence of compliance to be filed in the CTS within 14 days; no further mention necessary
  5. 5.In default of compliance, the court to deliver its ruling in the absence of the Plaintiffs' rejoinder and/or submissions
  6. 6.Ruling on the Application dated 7th April 2026 and the Preliminary Objection deferred to 18th November 2026

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution); interlocutory application within pending adverse possession suit

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.

bearing in mind that the right to a fair hearing is a fundamental constitutional guarantee that cannot be limited, this Court is swayed to consider the appropriate measures necessary to ameliorate any prejudice that the Defendant/Applicant may suffer as a consequence of the delay
p. 5Fair hearing as an unlimitable constitutional guarantee
This Court is equally guided by the constitutional imperative that justice shall be administered without undue regard to procedural technicalities.
p. 5Procedural technicalities versus substantive justice
In default of the plaintiff’s compliance with order(i) and (ii) above, the court shall proceed to deliver its ruling in the absence of the said Parties’ rejoinder and/or submissions.
Final orders - default provision
Ruling on the Application dated 7th April 2026 and the Preliminary Objection contained therein is deferred to 18th November 2026.
p. 6Final orders - deferral of ruling

Issues in the judgment

#
minor

Inconsistent case numbers for the earlier consolidated suit

minor

Quoted preliminary objection uses different numbers

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Yeri & 15 others v Thethe (Suing as the Legal Representative of the Estate of the Late Kaburuku Ndundi Thethe)", Case Analysis (2026). Enviromental and Land Originating Summons E009 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6123/eng@2026-10-01

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