https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4101

Crystal Investments Ltd v Elme & 3 others (Environment and Land Case 110 of 2019) [2026] KEELC 4101 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELC 4101 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 110 of 2019 TW Murigi, J June 12, 2026 Between Crystal Investments Limited Plaintiff and Yusuf Hassan Elme 1st Defendant Chief Land Registrar 2nd Defendant Attorney General 3rd Defendant National Land Commission 4th Defendant Ruling 1.By an amended Notice of Motion dated 3rd March 2026, brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 51 Rule 1, Order 9 Rule 9, Order 10 Rule 11, and Order 22 Rule 22 of the Civil Procedure Rules, the 1st Defendant/Applicant seeks the following orders:a.Spent.b.That the firm of Oscar Otieno and Co, Advocates, be allowed to come on record as Advocates for the 1st Defendant/Applicant herein.c.That the Notice of Appointment of an Advocate annexed herein be deemed as duly filed and served.d.That the Court be pleased to set aside its Judgement dated, delivered and issued on 8th February, 2024 and its Decree and that the suit be ordered to start afresh and de novo,e.That the 1st Defendant be granted leave to defend this suit and that the annexed draft defence herein be deemed to be properly on record upon payment of the requisite filing fees.f.Spent.g.That the costs of this application be provided for. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Yusuf Hassan Elme on even date. The 1St Defendant/applicant’s Case 3.The Applicant averred that judgment was delivered against him on 8th February 2024. He asserted that he was unable to participate in the proceedings because he was not served with summons to enter appearance or with any of the pleadings filed in the suit. 4.He further averred that he became aware of the suit and the judgment on 17th February 2026, when unknown persons claiming to be the Plaintiffs' agents forcibly entered and took possession of the suit property, which he asserted had always belonged to him. He explained that the Plaintiff later commenced execution by evicting him from the property and erecting an iron sheet fence around it. 5.He asserted that the 10-day notice was not served upon him after the entry of judgment, as required under Order 21 Rule 6 of the Civil Procedure Rules 2010, which renders the judgment unenforceable. 6.He argued that he has an arguable defence which should be heard on its merits. 7.Regarding the issue of delay, he argued that the application was filed without unreasonable delay, as his advocates only became aware of the judgment on 23rd February 2026 and responded promptly by filing a notice of appointment of an advocate. 8.He argued that he would suffer irreparable loss if the execution is not stayed, as he risked losing the suit property and paying Kshs. 500,000/= in general damages awarded by the Court. He maintained that the Plaintiffs would not be prejudiced if the orders sought are granted. He contended that he was ready and willing to abide by any conditions the Court might impose. The Plaintiff/respondent’s Case 9.The Plaintiff filed a replying affidavit sworn by Ashish Magon on 6th March 2026, in opposition to the application. The deponent averred that the application is misconceived, incompetent, and an abuse of the Court process, as the judgment of 8th February 2024 was regularly obtained following full compliance with all the procedural requirements. 10.He stated that after several unsuccessful attempts to effect personal service, the Plaintiff filed an application dated 7th May 2019 seeking to serve the 1st Defendant via substituted service. The court granted leave on 11th April 2019, directing service by way of advertisement in a widely circulated newspaper and upon the law firm of Ondabu & Company Advocates, who were on record for the 1st Defendant in ELC No. 23 of 2016. The deponent averred that despite such service, the 1st Defendant failed to enter an appearance. 11.He explained that after the Court was satisfied that proper service had been effected, the matter was certified as ready for hearing and scheduled for 6th June 2023. The Plaintiff subsequently filed a further application dated 15th February 2023 for substituted service of the hearing notice, which was granted on 12th April 2023. The Plaintiff duly complied and filed an affidavit of service dated 20th April 2023. Despite the foregoing, the 1st Defendant failed and neglected to enter an appearance. Consequently, the matter proceeded to a hearing based on uncontroverted evidence. 12.The deponent argued that the 1st Defendant's claim of lack of service is an afterthought intended to delay the Plaintiff from enjoying the fruits of its judgment. The deponent asserts that the 1st Defendant’s claim that it became aware of the suit in February 2026 was untenable, given his long history of interfering with the Plaintiff's peaceful possession of the suit property since 2014, as demonstrated in evidence at trial. 13.He stated that the Court found the Plaintiff to be the lawful owner of the suit property and held that the 1st Defendant's purported title was irregular and incapable of conferring ownership. 14.He argued that the annexed draft defence is a sham, raises no triable issues, and is merely intended to reopen litigation that has already been conclusively determined. 15.Regarding the allegation of absence of a 10-day notice under Order 21 Rule 6 of the Civil Procedure Rules 2010, the deponent argued that this was misleading, as no execution process had in fact been initiated. 16.He asserted that the Plaintiff would suffer continued prejudice and irreparable loss if restrained from enjoying the fruits of its judgment, especially since the 1st Defendant had already forcibly re-entered the suit property and attempted to unlawfully dispossess the Plaintiff. 17.He argued that the application was filed after an inordinate delay of more than two years from the date of the judgment, and that no sufficient cause had been demonstrated to justify setting aside the judgment. He maintained that the principle of finality in litigation required the matter to rest. 18.The application was canvassed by way of written submissions. The 1St Defendant/applicant’s Submissions 19.The 1st Defendant filed his submissions dated 26th May 2026. 20.On behalf of the Applicant, Counsel submitted that the judgment of 8th February 2024 should be set aside since the Applicant was never served with the pleadings in the suit and was therefore unable to defend himself. Counsel relied on Order 10 Rule 11 of the Civil Procedure Rules, which grants the Court discretionary power to set aside or vary a judgment on such terms as are just. Further reliance was placed on Order 5 Rule 5 of the Civil Procedure Rules, which requires a Plaintiff to extract and serve summons upon instituting a suit. To support this point, reliance was placed on Rose Njuki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR. 21.Counsel submitted that although the Plaintiff claimed that service was effected through the firm of Ondabu & Company Advocates, who are said to have acted for the Defendant in the related matter of ELC No. 23 of 2016, the Defendant had neither instructed that firm nor initiated any suit concerning the suit property. It was submitted that upon discovering this, the 1st Defendant reported the fraud and misconduct to the relevant authorities. 22.Counsel further submitted that the judgment was entered in violation of the 1st Defendant’s right to a fair hearing guaranteed under Article 50(1) of the Constitution of Kenya 2010. Counsel relied on the Court of Appeal decision in James Kanyita Nderitu & Another v Marios Philota Ghikas & Another [2016] eKLR to emphasize that the right to be heard before an adverse decision is made is fundamental to the justice system. 23.Regarding the issue of a triable defence, Counsel submitted that the draft defence raises triable issues which justify setting aside the judgment. Counsel relied on Kenya Power & Lighting Co. Ltd v Abdulhakim Abdulla Mohamed & Another [2017] eKLR, where the Court of Appeal held that the overriding consideration in an application to set aside a default judgment is to do justice to both parties, provided the intended defence raises triable issues and there is no evidence of deliberate intention to obstruct or delay justice. 24.Counsel identified the following triable issues arising from the draft defence: that the 1st Defendant holds a valid and indefeasible title to the suit property; that the Plaintiff lodged a complaint with the National Land Commission regarding the validity of competing titles; that on 20th December 2016, the National Land Commission determined that the 1st Defendant is the lawful owner of the suit property; and that the Plaintiff, being aware of this determination, instituted the present suit without disclosing it to the Court. 25.Counsel argued that the non-disclosure of the National Land Commission's determination amounted to concealing a material fact, and thus upholding the judgment would perpetuate an injustice against the 1st Defendant. Counsel maintained that the application was made without unreasonable delay, having been filed promptly after the 1st Defendant became aware of the suit and the disputed judgment. 26.In conclusion, Counsel urged the Court to exercise its discretion and allow the application as prayed. 27.At the time of writing this ruling, the Plaintiff/Respondent had not filed its submissions as directed. Analysis And Determination 26.Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination:a.Whether the firm of Oscar Otieno and Co Advocates should be permitted to come on record for the 1st Defendant after judgment; andb.Whether the judgment dated 8th February, 2024, should be set aside. 27.Regarding the first issue, Order 9 Rule 9 of the Civil Procedure Rules provides as follows:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person, as the case may be.” 26.The purpose of this provision is to protect advocates from being unjustly replaced after a judgment, especially in matters related to fees and professional engagement. This principle was emphasised in S.K. Tarwadi v Veronica Muehlemann [2019] eKLR, where the Court observed as follows:“…In my view, the essence of Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a Judgment is delivered and then sack the advocate and either replace him….” 26.In the matter at hand, the 1st Defendant filed an Affidavit of Service dated 4th March 2026, confirming physical service of this application on the Plaintiff’s Counsel, the Attorney General, the Chief Land Registrar, and the National Land Commission. 27.Based on the material presented, this Court finds that the requirements of Order 9 Rule 9 have been satisfied. 28.Regarding the second issue, the Applicant seeks to set aside the judgment delivered on 8th February 2024. Order 10 Rule 11 of the Civil Procedure Rules provides that:“Where judgment has been entered under this order, the court may set aside or vary such judgment and any consequential decree, or upon such terms as are just.” 26.Courts have the discretionary power to set aside an ex parte judgment in order to do justice to the parties. The discretion should be exercised to prevent injustice. In Philip Kiptoo Chemwoto and Mumias Sugar Company Ltd v Augustine Kubed (1982-1988) KAR, the Court held that:“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties”. 26.The well-established principles for setting aside interlocutory judgment were outlined in Patel vs East Africa Cargo Handling Services Ltd (1974) EA 75, where the Court held that:“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex parte judgment, except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules”. 26.The principles governing such applications were outlined by the Court of Appeal in James Kanyiita Nderitu & Another v. Marios Philotas Ghikas & Another [2016] eKLR, where the Court held that;“In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other” 26.The Court of Appeal in the case of CMC Holdings Ltd v. Nzioki [2004] KLR 173 was explicit that:“In an application for setting aside ex parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle.…………The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgement…The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.” 26.Regarding the issue of service, the 1st Defendant contends that he was not served with summons to enter appearance or the pleadings in this suit. The Plaintiff contends that the 1st Defendant was served by way of substituted service on more than one occasion. The record shows that pursuant to court orders issued on 7th May 2019, the Plaint was served by way of advertisement in a newspaper of wide circulation and upon the firm of Ondabu & Company Advocates, who were then acting for the 1st Defendant in ELC No. 23 of 2016. Further, before the matter came up for hearing, service of the Amended Plaint and the hearing notice was effected by substituted service pursuant to orders issued on 12th April 2023. A further affidavit of service filed on 20th April 2023 confirmed the publication of the hearing notice in the Standard newspaper on 14th April 2023. Despite these efforts, the 1st Defendant did not enter an appearance. 27.Based on the foregoing, I am satisfied that the 1st Defendant was served with the pleadings and the hearing notice. Consequently, the judgment entered by this Court is regular and may only be set aside at the Court’s discretion. 28.Regarding the issue of delay, judgment was delivered on 8th February 2024. The present application was filed on 3rd March 2026, approximately two years after the judgment date. The 1st Defendant attributed the delay to his lack of knowledge of the suit, arguing that he only became aware of these proceedings on 17th February 2026, when the Plaintiff sought to enforce the judgment. The Plaintiff argued that this explanation is untenable, considering the 1st Defendant's history of interfering with the Plaintiff's possession of the suit property dating back to 2014. This Court notes that a delay of such magnitude would normally weigh against exercising discretion in the applicant's favour. However, the length of delay is not, in itself, decisive; it is one factor to be balanced alongside the others. 29.In an application to set aside a regular judgment, the Defendant must demonstrate that the defence raises triable issues. In Kenya Power & Lighting Co. Ltd v Abdulhakim Abdulla Mohamed & Another [2017] eKLR, the Court of Appeal held that:“The fact that under Order 10 rule 11 the court has power to set the terms and conditions for vacating a default judgment does not mean that such conditions must be set arbitrarily without regard to the peculiar circumstances of each case. The overriding consideration in an application to set aside a default judgment where the intended defence raises triable issues and, absent evidence of intention or deliberate action by the appellant to overreach, obstruct or delay the cause of justice, is to do justice to both parties. (See Mbogo & Another v Shah, (supra). That is what both Order 10 rule 11 and the judgment in Patel v. East Africa Cargo Handling Services (supra) emphasize.” 26.In Tree Shade Motors Limited v D.T. Dobie & Company (Kenya) Limited & Another [1998] eKLR, the Court of Appeal further held that even where a judgment has been regularly entered, the court should examine the draft defence to determine whether it discloses a reasonable or arguable defence 27.In the matter at hand, the draft defence raises fundamental issues regarding the root of the Plaintiff's title, including the alleged suppression of the National Land Commission determination and the competing registered interests in the suit property. It is well established that issues of fraud affecting the validity of registered titles must be resolved through a full hearing on the merits. This court is satisfied that the draft defence discloses triable issues. 28.The upshot of the foregoing is that the application dated 3rd March 2026 is merited and is hereby allowed as follows:a.The firm of Oscar Otieno and Co, Advocates, is hereby allowed to come on record as Advocates for the 1st Defendant.b.The Notice of Appointment of an Advocate annexed to the application is deemed as duly filed and served.c.The Judgment issued on 8th February, 2024 and its Decree and orders is hereby set aside.d.The Defendant/Applicant shall pay to the Plaintiff thrown away costs of Kshs 200,000/- within 14 days from the date hereofe.In default of prayer (d), the orders setting aside the judgment shall be vacated /or lapse automatically.f.The 1st Defendant’s draft defence annexed to its application is deemed to be properly on record upon payment of the requisite filing fees.g.The Plaintiff is awarded the costs of the application. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 12TH DAY OF JUNE 2026…………………………………….HON. T. MURIGIJUDGEIn The Presence Of:Mrs Ondimu for the Plaintiff/RespondentMrs Giata for the Defendant/ApplicantAhmed – Court assistant