https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3164

Wekesa t/a Timpech Auctioneers v Wanyama & 4 others (Environment and Land Miscellaneous Application E033 of 2025) [2026] KEELC 3164 (KLR) (11 May 2026) (Ruling) Neutral citation: [2026] KEELC 3164 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Miscellaneous Application E033 of 2025 AK Bor, J May 11, 2026 Between Timothy Wanjala Wekesa t/a Timpech Auctioneers Applicant and John Barasa Wanyama 1st Respondent Musa Wanyonyi Wanjala 2nd Respondent Erusmus Mulongo Kuta 3rd Respondent Hassan Ashibende 4th Respondent Mohammed Wabwile Wanyama 5th Respondent Ruling 1.Through the application dated 3/2/2026, the Respondents seek review, setting aside of the proceedings and orders issued on 22/1/2026 and to arrest the ruling slated for 12/2/2026 pending hearing and determination of that application. In addition, the Respondent sought leave to file a replying affidavit in response to the application dated 29/8/2025 and for the court to issue fresh directions for the hearing of that application. 2.The application was made on the grounds that the Respondents were not served with the mention notice for 1/10/2025 and that the application was served on them on 21/1/2026 at 4.00 p.m. The Respondents claimed that they attended the wrong court and that after a long wait; they were directed to the Environment and Land Court. They were surprised to learn that their case had been dealt with and a ruling date set for 12/2/2026. They sought leave to respond to that application. John Barasa Wanyama and Musa Wanyonyi Wanjala swore the supporting affidavit. 3.Timothy Wanjala Wekesa swore the replying affidavit to oppose the application. He deponed that the application was made in bad faith and was meant to delay justice for the judgment creditor who obtained judgment in 2021. He averred that he knew the Respondents and where they lived. He described their homes and argued that the Respondents had a habit of denying service. He pointed out that it took the Respondents 17 days to file the application yet they were in court on 22/1/2026 when the court dealt with the application dated 29/8/2025. He urged that the Respondents’ contention that the suit land was ancestral land had been conclusively determined in the previous suits. He mentioned that the file in ELC Case No. 90 of 2017 was closed in response to the respondents’ contention that they had a pending application in that suit. 4.John Barasa Wanyama and Musa Wanyonyi Wanjala swore a further affidavit denying that the Applicant the accompanied the process server when he went to effect service. They argued the court to grant them an opportunity for them to be heard before issuing orders with respect to auctioneers’ application. 5.The Respondents filed submissions. They cited order 12 rule 7 and urged the court to set aside its orders. They submitted that the general principle that the court should strike, to have the matters heard and determined on merit. They also cited Articles 25, 47, 48 and 50 of the Constitution on the right to a fair hearing and access to justice. 6.The issue for determination is whether the court should grant the orders sought. The Respondents’ argument is that they were denied an opportunity to be heard on the application dated 29/8/2025 due to lack of service. Further, that when that application came up for hearing on 22/1/2026, they went to the wrong court and by the time they were directed to the right court, their matter had already been dealt with. 7.Based on the explanation the Respondents have given that they went to the wrong court when the matter came up on 22/1/2026, the court is inclined to set aside the proceedings of 22/1/2026 to give the Respondents an opportunity to be heard and to participate in the hearing of that application. 8.The Respondents are granted leave to file and serve their response to the application dated 29/8/2025 within 7 days of the date of this ruling. 9.Since this miscellaneous application was filed to enforce a decree issued in a previous suit, further proceedings will be undertaken in Bungoma ELC Case No. 90 of 2017 for ease of reference. DELIVERED VIRTUALLY AT BUNGOMA THIS 11TH DAY OF MAY 2026.K. BORJUDGEIn the presence of: -Mr. R. Wamalwa hoding brief for Mr. R. Kipngeno for the ApplicantMr. D. Okaka holding brief for Mr. P. Juma for the RespondentsCourt Assistant- Josephat Bett