https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3191

Ojwang v Ghelani & 4 others (Environment and Land Case 232 of 2013) [2026] KEELC 3191 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3191 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case 232 of 2013 E Asati, J May 21, 2026 Between Jacob Nyakwa Ojwang Plaintiff and Nathwalal Narishidas Ghelani 1st Defendant Joshua Omari t/a Sedime Agencies 2nd Defendant Samwel Ogweno Okech 3rd Defendant Joshua Ongwen Wagude 4th Defendant The Didtrict Land Registrar 5th Defendant Ruling The Application 1.The Notice of Motion application dated 4th November, 2024, brought by the 1st Defendant/Applicant was expressed to be brought pursuant to the provisions of Order 5 rule 15, 12, and 7. The application seeks orders that;1.The application be certified as urgent.2.The honourable court be pleased to set aside the judgment delivered by Hon. A Ombwayo J on 7th December, 2021.3.The honourable court be pleased to grant the 1st Defendant leave to file responding pleadings, to the pleadings of the 2nd – 6th Defendants, and to adduce evidence before a judgment can be delivered.4.Costs of this application be provided for. 2.The Application was supported by the averment in the Supporting Affidavit of Thomas Nyakundi Manwa, who deposed that he had been authorized by the 1st Defendant to represent his interest in the matter through a Power of Attorney. He deposed that he perused the court records and discovered that a judgment was delivered by Hon. A Ombwayo on 7th December, 2021, that the 1st Defendant was never served with any and/or all court processes, leading to the delivery of the judgment. He deposed further that the 1st Defendant was only involved in the proceedings until the judgment delivered by Hon. Kibunja, J on 16th May, 2016, that the 1st Defendant only learnt of the proceedings from a friend. That he was not served with Notice of Appeal and has therefore filed an application before the Court of Appeal seeking a stay of proceedings thereat until the present application is heard. 3.That the impugned judgment did not benefit from his evidence, hence creating the impression that the 2nd and 5th Defendants have a claim over the suit property. 4.In addition to the Supporting Affidavit, the 1st Defendant/Applicant also filed his Further Affidavit, sworn on 29th October, 2025, in which he deposed that he is the one who appointed Thomas Nyakundi Manwa as his representative and donated powers in the Power of Attorney, and that to date, he remains his representative in matters related to the suit land. That he is the one who paid the registration fees for the Power of Attorney and all the required stamp duty fees, and that all the receipts in respect thereof were in his house at Westland. 5.That he is the registered proprietor of land parcel No. Kisumu/Kanyakwar B/396. That in the suit, he had filed a Statement of Defence in admission to the effect that he had no problem transferring 4 Ha of the land to the Plaintiff. 6.That he was never served with any court process after Justice Kibunja delivered his judgment. That he does not know the 2nd, 3rd, 4th, and 5th Defendants, as he has never met them in his life. That he has never sold his land to any person. That the allegation by the 3rd, 4th, and 5th Defendants that they bought the land from the 2nd Defendant was strange to him. 7.That he seeks that all proceedings after the judgment of Justice Kibunja be set aside so that he can get the opportunity to respond to the pleadings filed by the 2nd, 3rd, 4th, and 5th Defendants. Interested Party’s Response 8.The application was supported by the Interested Party, who, vide the Replying Affidavit sworn by Cornel Opiyo Osano on 9th February, 2026, deposed that it is in the interest of justice for the court to grant the relief sought in the application dated 4th November, 2024, to uphold the 1st Defendant’s unalienable right to a fair hearing. 9.That the judgment of the court dismissed the Plaintiff’s suit but did not extinguish the 1st Defendant’s ownership of the property. That the 1st Defendant ought to be given a chance to give evidence on his position in the matter. 3rd and 4th Defendants’ Response 10.The application was opposed by the 3rd and 4th Defendants vide the averments in the Replying Affidavit sworn by the 4th Defendant on 9th October, 2025. 11.It was the case of the 3rd and 4th Defendants that the Power of Attorney, donating power to the deponent of the Supporting Affidavit to the application, was marred with glaring irregularities. 12.That the discretion of the court to set aside the judgment can only be exercised upon plausible reasons being placed before the court, and this discretion must be exercised judiciously. 13.That the 1st Defendant never filed a statement of defence or counterclaim, it would be a waste of judicial time to set aside the judgment and reopen the case. Submissions by the 1st Defendant/Applicant 14.On behalf of the 1st Defendant/Applicant, written submissions dated 12th February 2026, were filed by NE Mogusu & Associates Advocates. Counsel submitted that the judgment of Hon. Ombwayo J resulted from proceedings that locked out the 1st Defendant. That the 1st Defendant is the registered owner of the suit land and has never sold it to anyone. 15.That the 1st Defendant seeks the court to set aside the judgment of Hon. Ombwayo J so that he can be afforded an opportunity to participate in the proceedings and respond to the pleadings filed by the other parties. 16.Counsel urged the court to allow the application. Interested Party’s Submissions 17.On behalf of the Interested Party, written submissions dated 23rd April, 2026, were filed by Muma, Kanjama Advocates. Referring to the provisions of Article 50 of the Constitution of Kenya 2010, Counsel submitted that it is a principle of our constitutional order that every litigant is entitled to a fair hearing. Counsel further referred to article 159(2)(d) 8(e) of the Constitution that justice should be administered without undue regard to procedural technicalities. Counsel further referred to the provisions of sections 1A and 1B of the Civil Procedure Act, which provide that the overriding objective of the Act is to facilitate the just, expeditious, proportionate and affordable resolution of disputes, and section 3A on the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the court process. Counsel urged the court to exercise its inherent jurisdiction to make orders to achieve the ends of justice in the matter. 18.On whether or not the judgment should be set aside, Counsel submitted that from the pleadings and affidavits on record, it was clear that the Plaintiff and all the other Defendants did not serve the 1st Defendant after the judgment by Justice Kibunja on 18th May, 2016. That the issue of failure to serve has not been controverted by any party. That the 1st Defendant was denied the opportunity to participate in the proceedings leading to the judgment delivered on 7th December, 2021. 19.Relying on various authorities on setting aside of judgments, including John Mukulia v Charles Mwangi Mburu (2019) eKLR and Patel v EA Cargo Handling Services Ltd (1974) EA 75, Counsel submitted that in the present case, the Applicant had shown sufficient cause why the judgment should be set aside. That service was not effected upon the 1st Defendant and that he was effectively denied an opportunity to participate in the proceedings. 20.On whether the honourable court should grant the 1st Defendant leave to file responding pleadings to the pleadings by the 2nd to the 6th Defendants and to adduce evidence before judgement can be delivered, Counsel submitted that the orders flow from the prayer for setting aside of the judgment to enable the 1st Defendant exercise, his constitutional right to a fair hearing which provides for a right to adduce and to challenge evidence. 21.That the reasons for the prayer are valid and have not been controverted by any party. Counsel urged the court to allow the 1st Defendant’s application. 3rd and 4th Defendants’/Submissions 22.On behalf of the 3rd and 4th Defendants, written submissions dated 7th April, 2026, were filed by Oguttu Mboya, Ochwal & Partners Advocates. Counsel submitted that when the 1st Defendant was served with Summons to Enter Appearance, he filed a statement of admission dated 25th October, 2013, and prayed that judgment be entered in favour of the Plaintiff as prayed. 23.Counsel challenged the Power of Attorney sworn by the deposit of the Supporting Affidavit and submitted that the same was not valid and Submitted further that the Supporting Affidavit was therefore sworn by a stranger to the proceedings and that the said should therefore be struck out with the effect that the application ought to be dismissed with costs. 24.On the merits of the application, Counsel Submitted that the 1st Defendant was aware as at 17th September, 2013, when the suit was filed, that the 3rd and 4th Defendants were the registered owners of the suit land and that the law placed a responsibility on the 1st Defendant to lodge a defence. That instead, the 1st and 5th Defendants filed statements of admission. 25.That the 1st Defendant has not filed a draft defence to demonstrate that he has triable issues which ought to be considered by the court. 26.That the discretion to set aside a regular judgment is intended to ensure that justice prevails and not to assist a party who has no statement of Defence on record or as a draft. 27.Counsel submitted that reopening the case shall prejudice the 3rd and 4th Defendants. Analysis and Determination 28.I have considered the application, the Affidavits sworn in support thereof, the Replying Affidavit, and the written submissions filed by Counsel. 29.The substantive prayer sought is an order setting aside the judgment dated 7th December, 2021. The grounds for setting aside a judgment are that the Applicant must demonstrate sufficient grounds and that he/she has a good defence that raises triable issues. The main grounds advanced by the Applicant were that he was not served with the documents filed after the judgment of Justice Kibunja delivered on 18th June, 2016. That he was therefore denied his constitutionally guaranteed right to a fair hearing. 30.Perusal of the court record reveals that the suit was filed against all the Defendants. The Plaintiff claimed in the plaint that 4 acres of the suit land belonged to him, while 8 acres thereof had been bought by the 1st Defendant. That registration of the 1st Defendant as owner of the whole land measuring 12 acres was fraudulent, as the 1st Defendant had only bought 8 acres. 31.The Plaintiff had also pleaded in the plaint that the 5th Defendant had fraudulently and unlawfully sold the suit land to the 2nd Defendant, who sold it to the 3rd and 4th Defendants. 32.The Plaintiff sought relief, including an order that the suit land be surveyed and subdivided so that a portion measuring 8 acres is registered in the name of the 1st Defendant, while the remaining 4 acres is registered in the name of the Plaintiff. The Plaintiff further sought a declaration that any dealings, transactions, entries, and records made by and in the name of the 2nd, 3rd, and 4th Defendants regarding the suit land were fraudulent and void and should be cancelled. 33.The record shows that the 1st Defendant, upon service of the Summons to Enter Appearance, filed the 1st Defendant’s Statement of Admission dated 25th October, 2025, denied knowing the 2nd, 3rd, 4th, and 5th Defendants and prayed that judgment be entered against the 2nd, 3rd, 4th, and 5th Defendants as prayed in the plaint. 34.This to me means that the 1st Defendant was agreeable to the suit land being subdivided so that he retains 8 acres while the Plaintiff is given 4 acres, and that he was agreeable to the court finding that the dealings of the 2nd, 3rd, 4th, and 5th Defendants over the suit land were fraudulent and void, and should be cancelled. In other words, the 1st Defendant’s case was one and the same as the Plaintiff’s. 35.The 1st Defendant, even after learning from the plaint that the land was no longer in his name but in the names of the 3rd and 4th Defendant and/or their agents, did not challenge the registration by way of counterclaim or at all, but agreed with the case of the Plaintiff. 36.The record shows that the case of the Plaintiff against all the Defendants was heard, and vide the judgement dated 7th December, 2021, the trial court found that the Plaintiff had failed to prove his case on a balance of probabilities and dismissed the suit with costs. 37.The 3rd and 4th Defendants did not file a counterclaim but only denied the Plaintiff’s claim vide their joint statement of Defence dated 20th February, 2017. 38.The 1st Defendant/Applicant has not demonstrated to the court that he has a defence to the Plaintiff’s suit that has triable issues. 39.It was common ground that there is an appeal pending in the Court of Appeal in respect of this matter. Although the 1st Defendant/applicant herein claimed that he had filed an application for stay of the Court of Appeal proceedings pending determination of his application to set aside the judgment herein, no evidence was exhibited to the court to confirm the existence or status of such an application for stay. 40.I find that the grounds for setting aside the judgment herein have not been demonstrated. The application is dismissed. Each party to bear its own costs of the application. 41.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 21ST DAY OF MAY, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGEIn the presence of;Atika: Court Assistant.Khatete h/b for Muma together with Ogonda for the Interested Party/Applicant.N/A for the Plaintiff.Nyamweya for the 1st Defendant.N/A for the 2nd, 3rd, 4th, 5th and 6th Defendants.