https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3192

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC LAND CASE NO. E012 OF 2024** KISUMU PAMOJA HOUSING COOPERATIVE SOCIETY LIMITED …….……………….…… PLAINTIFF VERSUS JOSEPH MOKAYA MAERI …..…...............................1ST DEFENDANT SAMUEL ORIMBA HONGO .……………………………...2ND DEFENDANT **RULING** Five applications are pending determination in this matter. They are the Notice of Motion applications dated 20/8/2025, 7/11/2025, 30/1/2026, 3/3/2026, and the objection dated 23/2/2026. Notice of Motion dated 20th August, 2025 The Notice of Motion application dated 20th August, 2025, filed by the 1st Defendant under the provisions of Order 22 Rule 22, 6 and 18(1)(a) and Order 51 Rule 1 Civil Procedure Rules and Section 34 of the Civil Procedure Act Cap 21 Laws of Kenya seeks orders that; 1. Leave be granted to the firm of Kouko & Odero Advocates LLP to come on record for the 1st Defendant herein in place of the firm of Odumbe & Odumbe Advocates hitherto on record, and the Notice of Appointment of Advocates filed together with this instant application be deemed as properly filed. 2. The final judgment hitherto entered against the Defendant and all consequential orders thereafter made against the Defendants be set aside and the Defendant be granted leave to appear and defend the suit. 3. Upon grant of prayer (b) (prayer for setting aside of the judgment), the draft defence to the suit annexed to this application shall be deemed duly filed and served, subject to payment of the requisite court fees. 4. The costs of this application be provided for. The application was brought on the grounds stated on the face of the Notice of Motion and in the Supporting Affidavit sworn by the 1st Defendant on 20th August, 2025, and the annexures thereto. The application was opposed vide the Replying Affidavit sworn by George Juma K’Opallah on 25th October, 2025. The 2nd Defendant did not oppose the application. The prayer for the firm of Kouko & Odero Advocates to come on record for the 1st Defendant was not opposed. The same is hereby allowed, and the pleadings and documents filed by the said firm of Advocates are deemed as properly filed. The substantive relief sought in the application is an order setting aside the ex parte judgment and for the 1st Defendant to be given a chance to defend the suit. The grounds for setting aside of ex parte judgements are that the Applicant must explain the reason for non-participation in the proceedings that led to the ex parte judgement, demonstrate that he/she has a good defence that raises triable issues, and that the Respondent shall not suffer prejudice if the application is allowed. The Applicant’s explanation for non-participation in the proceedings is that the lawyer he instructed to represent him in the matter failed him by failing to file the appropriate responses to the plaintiff’s claim and failing to attend court. The 1st Defendant acknowledged that he was indeed served with Summons to Enter Appearance and the Plaint. He averred that after service, he instructed Mr. Odumbe of Odumbe & Odumbe Advocates to enter an appearance. That he was later surprised to find that judgment had already been delivered in the matter. The Plaintiff’s response to this explanation as contained in paragraphs 5 to 8 of the Replying Affidavit is that no plausible reason has been advanced by the Applicant for his failure to enter appearance within the time prescribed by law, that the 1st Defendant has not provided evidence to demonstrate that he paid legal fees and/or properly instructed the firm of M/s Odumbe & Odumbe Advocates to enable them attend court and execute their instructions, that the Applicant has not shown court the alleged supporting documents that were left in the custody of the Advocates, that the 1st Defendant has not provided proof of the efforts he made to contact his advocates and that the 1st Defendant could have easily followed upon the progress of his case either virtually or through the Judiciary Case Tracking System (CTS) even though he ordinarily resides in the Unites States of America. Perusal of the Court record shows that on 22nd July, 2024, Mr. Odumbe appeared in court for the Defendants for prosecution of an application dated 19th July, 2024 that sought to vary court orders issued on 24th April, 2024. The record shows that the said application was compromised, and the Defendants were allowed more time to file their documents, and the Plaintiff was given corresponding leave to file further documents, if any. The matter was then fixed for hearing of the main suit on 3rd December, 2024. The record shows that on 3rd February, 2024, there was no attendance for the Defendants and that the hearing proceeded and judgement was subsequently delivered on 26th June, 2025. The court record confirms that the firm of Odumbe & Odumbe was instructed, but whether the said firm had sufficient instructions to act for the 1st Defendant to the end of the matter is a matter between the client and the Advocate. Whether the first Defendant instructed Counsel or not, as the party sued, he retained the obligation to follow up and know how his case was progressing, whether his Counsel was attending court or not and whether he needed to take any steps to ensure his participation in the proceedings. The court therefore finds the explanation given for non-participation in the proceedings to be unsatisfactory. The second ground on which a judgment may be set aside is that the Applicant has a good defence that raises triable issues. The applicant contends that he has a good defence to the claim and should be permitted to ventilate it in the interest of justice and equity. The Plaintiff’s response, as contained in paragraphs 9 and 10 of the Replying Affidavit, is that the 1st Defendant/Applicant has failed to demonstrate that he has a formidable defence to the Plaintiff’s suit and that the draft Statement of Defence attached to the application is a mere denial and does not raise triable issues. I have seen the draft Statement of Defence annexed to the application. The Applicant denies the claim in the plaint that the Plaintiff is the bona fide registered owner and legal proprietor of the suit land. He avers that the suit land belonged to him (Applicant). He denies that he trespassed onto the suit land in May 2023 and avers that he had been in occupation of the said portion of the land since 2014. These are no doubt triable issues in the dispute before the court. The third ground is that prejudice will not be occasioned to the Respondent if the application is allowed. The Plaintiff responds that the application is frivolous and grounded on irrelevant/insufficient material upon which the court cannot exercise its judicial discretion in favour of the 1st Defendant. That the application is an attempt by the 1st Defendant to frustrate the Plaintiff from enjoying the fruit of the judgment. While it is true that the plaintiff, having prosecuted the suit to the end, should be allowed to enjoy the fruits of the ensuing judgment, the applicant, having demonstrated that he has a defence that raises triable issues, ought not to be denied a hearing. The plaintiff may be compensated by an award of costs. I find that the application has merit. Notice of Motion dated 7th November, 2025 The next application is the Notice of Motion dated 7th November, 2025, brought on behalf of the 2nd Defendant pursuant to the provisions of Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act Chapter 21 Laws of Kenya. The application seeks orders that; 1. The final judgment entered against the 2nd Defendant and all consequential orders thereafter made against the 2nd Defendant be set aside, and the 2nd Defendant be granted leave to appear and defend the suit. 2. That upon setting aside the judgment, the draft defence to the suit annexed to the application be deemed duly filed and served subject only to payment of the requisite court fees. 3. That the costs of the application be provided for. The application is supported by the averment in the Supporting Affidavit sworn by Samuel Orimba Hongo, the 2nd Defendant, and the annexures thereto. The case of the 2nd Defendant/Applicant is that on 5th November, 2025, he was served with a warrant of attachment for the sale of his property on account of a debt of Kshs.3,000,000/- despite not being aware of the suit. He averred that he has no interest whatsoever in the suit property as he is not the owner, has never developed it or trespassed onto it and was at a loss as to why he had been sued in this case. He further averred that he was never served with any pleadings in the suit and therefore did not have a chance to defend himself. That he never instructed Odumbe & Odumbe Advocates to represent him in the suit. That had he been aware of the suit, he would have defended himself adequately in the substantive suit. He contended that he was being condemned unheard, that he had a good defence to the suit, and that he deserved an opportunity to defend himself in the proceedings. That the application was made in good faith and within 2 days of his being aware of the existence of the suit. The application was opposed vide the contents of the Replying Affidavit sworn by George Juma K’Opallah on 26th January, 2026. He deposed that the 2nd Defendant was served with the plaint and summons to Enter Appearance and Affidavit of Service filed on 23rd April, 2024. That no plausible reason has been advanced for the failure of the 2nd Defendant/Applicant to enter an appearance within the time prescribed by law. That there is no evidence that the 2nd Defendant has complained to the firm of Odumbe & Odumbe Advocates for acting on his behalf without instructions. That the National Construction Authority, in their letter dated 20th March, 2024, confirmed that the 2nd Defendant was carrying out illegal, unlawful, and non-compliant construction works on the suit land. That the 2nd Defendant has not demonstrated that he has a formidable defence to the suit. That the draft defence contains more denial and does not raise any triable issues. The application was heard by way of written submissions. On behalf of the 2nd Defendant/Applicant, written submissions dated 3rd February, 2025, were filed by Onyango Jonyo & Company Advocates. Counsel submitted that the 2nd Defendant was condemned without notice of the allegation against him or on an opportunity to be heard in response to those allegations. Counsel relied on various authorities in support of his submissions, including *Frigoken Ltd. -vs- Value Pak Food Ltd,* where the court held that if there is no proper service of summons to enter appearance, the resulting judgment is an irregular judgment liable to be set aside by the court ex debito justiciae. Counsel urged the court to allow the application. On behalf of the Plaintiff, it was submitted vide the written submissions dated 24th February, 2026, filed by Maube Muyeya Associates Advocates that the 2nd Defendant/Respondent was served with the Summons to Enter Appearance and pleadings as demonstrated by the Affidavit of Service sworn by Mr. Julius Otieno Raminya, which Affidavit remains uncontroverted. That the 2nd Defendant has failed to demonstrate that he did not instruct M/s Odumbe & Odumbe Advocates. That the draft defence annexed to the application does not raise any triable issues. That the 2nd Defendant's conduct is not an excusable error and/or mistake but a well-calculated scheme to delay the course of justice. Counsel urged the court to dismiss the application. Counsel submitted further that in the event that the court is inclined to allow the application, then the same be on the proposed terms of thrown away costs of Kshs.300,000/- payable to the Plaintiff, and that the defence be filed and served within 7 days. I have considered the application, the Replying Affidavit, and the submissions. The explanation advanced by the 2nd Defendant/Applicant for his failure to participate in the proceedings leading to the ex parte judgment is that he was not served with the Summons to Enter Appearance or any pleadings in the case. However, an Affidavit of Service filed by the process server explains how and when the 2nd Defendant was served. The Affidavit of Service was not challenged. The Applicant did not seek to cross-examine the process server to test the veracity of the contents of the Affidavit of Service. I find that service of Summons to Enter Appearance and pleadings was effected upon the 2nd Defendant, hence the explanation for non-participation is not plausible. I have, however, considered the draft defence attached to the application in which the applicant denies having any interest in the suit land or interfering with the same. I find that the draft defence raises triable issues, and the applicant ought to be given a chance to ventilate them. Notice of Motion application dated 30th January, 2026 The Notice of Motion application dated 30th January, 2026 was brought by the 1st to 4th Proposed Interested Parties pursuant to the provisions of article 159(2)(a) and article 50 of the Constitution of Kenya, 2010, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and sections 3A, 63(e) of the Civil Procedure Act. The application sought orders that; 1. The honourable court, be pleased to set aside the eviction orders and warrants issued on 5th March 2025. 2. The honourable court be pleased to set aside the ex parte proceedings and attendant judgment and decree in the suit. 3. The court issues orders allowing the applicants to be formally joined to the case as Interested Parties. 4. Costs of the application be provided for. The application was supported by the averments in the Supporting Affidavits of Lilian Miriam Atieno Ochieng and Judith Adhiambo Matengo. The case of the applicants is that they were served with eviction warrants by the auctioneers, yet they were not parties to the suit. That the Plaintiff deliberately failed to include them in the suit. That they have proprietary rights over the suit property as they were allocated the suit land by the Municipal Council of Kisumu. That they stand to suffer irreparable loss if the orders sought are not granted. The application was opposed by the plaintiff on the grounds contained in the Replying Affidavit, sworn on 2nd February 2006, that the suit land is the property of the plaintiff who is at all material times wholly in possession save for the illegal constructions by the 1st and 2nd Defendants. That the applicants had not demonstrated that the land parcel numbers 15356- 17U and 15356- 4U, which they claim are one and the same land as the suit land, herein parcel number 15356 (Grant No. L.R. 55485. The plaintiff contended that the applicants failed to demonstrate that they have a formidable claim or defence to the suit, as no pleadings have been attached to the application to demonstrate their causes of action. To these, the applicants responded vide the Further Affidavit of Judith Adhiambo Matengo that the applicants occupy portions of land parcel No. L. R. 15356 based on the units allocated by the Municipal Council of Kisumu. That land parcel numbers 15356- 17U and 15356- 4U, among others, constitute part of the larger block No. L.R. 15356 (Grant L. R. 55485). That therefore, the applicants have an interest in portions of the suit property, and that they have a good defence to the plaintiff’s claim that raises triable issues. To the Further Affidavit, the applicants annexed a draft joint statement of defence. The application was heard by way of written submissions. The Notice of Motion dated 3rd March 2026. The application dated 3rd March 2026 was also filed on behalf of a Proposed Interested Party, one Abonyo Edwin Jacob. Like the proposed Interested Parties in the application dated 30th January 2026, he claims to have been allocated a portion of the suit land identified as PLOT NO 15356- 15 by the Municipal Council of Kisumu, yet the suit proceeded without him being made a party or being notified of the existence of the suit. That he has now been served with eviction warrants by the auctioneer, and that his trees on the portion of the suit land were cut down. He sought similar orders as in the application dated 30th January 2026, herein. The application was opposed on the grounds contained in the Replying affidavit of George Juma K’Opallah, sworn on 11th March 2026, inter alia, that the suit had been finalized and execution of the decree had taken place. I have considered the applications dated 30th January 2026 and 3rd March 2026 together, the responses thereto, and the submissions made. The applicants claim to own portions of the suit land, which were allocated to them. It is not denied that they were served with eviction warrants, yet they were not parties in the suit. I find that they qualify for joinder in the suit as Interested Parties, as they have demonstrated that they have a legal stake in the suit and that the outcome of the suit is bound to affect them. For the foregoing reasons find that the applications have merit and make the following orders; 1. The applications dated 20/8/2025 and 7/11/2025 are hereby allowed as follows: 2. The judgment dated 26/6/2025 herein is set aside. 3. The Defendants are hereby allowed to file and serve their defence(s), and compliance documents, if any, within 14days of the date hereof. 4. The Plaintiff shall file a response and further documents, if any, in response to the defence and defendants’ documents within 14 days of service. 5. As execution of the decree has taken place, the Defendants are hereby restrained from entry onto the suit land, and the plaintiff is restrained from carrying out any developments or alienating any part of the suit land pending hearing and determination of the suit. 6. Thrown away costs of Kshs. 100,000/- is awarded to the plaintiff to be paid by each of the Defendants, paying Kshs 50,000 thereof within 45 days hereof. 7. The applications dated 30/1/2026 and 3/3/2026 are allowed as follows; 8. The applicants in both applications are joined in the suit as Interested Parties: the applicants in the application dated 30/1/2026 are the 1st to 4th Interested Parties, and the applicant in the application dated 3/3/2026, the 5th Interested Party. 9. The applicants shall file and serve their documents upon the Plaintiff and the Defendants within 21 days hereof. 10. The Plaintiff and the Defendants shall file responses, if any, within 14 days of service. 11. The restraining orders in order number i (d) herein above apply to the Interested Parties as well. They are hereby restrained from entry onto the suit land pending hearing and determination of the suit. 12. Each party shall bear its own costs of the applications. 13. The suit shall be mentioned on **7/7/2026** before Court 1 to confirm compliance and for directions on the disposal of the Objection dated 23/2/2026 and the suit. Orders accordingly. **Ruling dated and signed at Kisumu, read this 21st day of May, 2026, virtually, through Microsoft Teams online application.** **E. ASATI,** **JUDGE.** **In the presence of** Atika: Court Assistant Maube for the plaintiff. Kouko for the 1st Defendant. Onyango for the 2nd Defendant. Ouro for the applicants in the application dated 30/1/2026.