https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4627

Makau v Mbira (Originating Summons 185 of 2018) [2026] KEELC 4627 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEELC 4627 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Originating Summons 185 of 2018 LL Naikuni, J July 17, 2026 IN THE MATTER: TITLE KNOWN AS CR. NO. 24644 AND IN THE MATTER: AN APPLICATION FOR DECLARATION THAT THE APPLICANT HAS OBTAINED OWNERSHIP OF THE BY WAY OF ADVERSE POSSESSION Between Peter Ngove Makau Plaintiff and Henry Odero Mbira Defendant Ruling I. Introduction 1.Before this Honourable Court for determination is the Notice of Motion dated 2nd December, 2022 filed by Henry Odero Mbira, the Defendant/Applicant, seeking ‘inter alia’ orders that the Judgment delivered on 23rd April, 2020 in favour of the Plaintiff/Respondent, Peter Ngove Makau, be set aside and that the Defendant be granted leave to defend the suit. 2.The Application is premised upon the provisions of Order 12 Rule 7, Order 40 Rule 1 & 2 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act Cap. 21 Laws of Kenya. 3.The Defendant/Applicant contends that he was the registered proprietor of the suit property known as Plot No. 2010/III/MN (Original No. 1869/II), having purchased it in 1993, and that he was never served with summons in respect of this suit. He further asserts that the Plaintiff’s claim of occupation for over 25 years is false, and that the judgment was obtained through misrepresentation and fraud 4.Upon service of the Application, the Plaintiff/Respondent opposed it through a Replying Affidavit sworn on 7th November, 2024, wherein he maintains that service was duly effected by registered post and newspaper advertisement pursuant to court order, and that he has been in peaceful, uninterrupted occupation of the suit property for more than 25 years. The Plaintiff further argues that the Application is frivolous, filed two years after judgment, and that the property has since exchanged hands with a provisional title deed issued. II. The Defendant’s case 5.The Defendant’s sought the following orders in their application that:-a.Spent.b.Spent.c.That this Honourable Court be pleased to set aside the Judgment entered against the Defendant/Respondent and the Defendant be granted leave to defend the suit.d.That the costs of this application be provided for. 6.The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 30 paragraphed Supporting Affidavit of – HENRY ODERO MBIRA, the Defendant/ Applicant herein, sworn and dated the same day with the application. The Applicant averred that:a.He was the registered owner of the suit property at the time when the suit was filed and that he ordinarily lived in Nairobi.b.He bought the suit property sometime in the year 1993 and annexed a copy of the Agreement marked as “A” to bear him witness.c.The property was thereafter transferred to him and annexed copies of the Transfer document and the resultant title marked as “B”.d.The property contained by measurement 0.0283 hectares.e.The Affiant stated that upon acquiring the property, the Plaintiff who owned a plot adjacent to his became his neighbour and knew that he was the owner of the subject plot.f.He did not have funds to develop the property and for a long time the plot remained vacant.g.One of his neighbours known as Joshua Embiso requested permission to use the said plot to store building materials, which request he accepted.h.The property remained undeveloped until December 2021 when the Plaintiff moved in and started construction works thereon.i.He last visited the plot sometime in March, 2019 just before the global pandemic of Covid ‑ 19 outbreak, during which time the plot was vacant. He annexed a copy of a photograph taken on 11th March, 2019 showing the plot vacant, marked as “C”.j.By the time the suit was filed in the year 2018 the plot was vacant and the Plaintiff was not occupying the same, and therefore it was not true that the Plaintiff had occupied the property for a period of 25 years as pleaded or at all.k.He was not served with the summons and urged the court to take judicial notice of the fact that in the months preceding April, 2020 the country was facing a great wave of the Covid ‑19 pandemic and a good section of the country was on lockdown.l.As a matter of fact the first case of Covid‑19 infection was reported in early 2020 and a lockdown was subsequently enforced around March, 2020.m.During this period one could not move from Nairobi to Mombasa and this state of affairs continued until mid ‑ 2021.n.He could not have travelled to Mombasa during this time and this explained why he next visited Mombasa in December, 2021.o.It was during his visit to Mombasa in December, 2021 that he noticed developments on his property as hereinabove indicated.p.Even after subsequently discovering from the Land Registry that the transfer was effected in favour of the Plaintiff pursuant to the court order, he was informed by his advocates on record, particularly Mr. William O. Wameyo, that attempts to trace the court file to enable them make appropriate application proved futile. He annexed a copy of a letter dated 22nd February, 2022 marked as “D”.q.He only became aware of the fact that developments were going on in his plot sometime in 2022 when he visited Mombasa.r.He then enquired on what was going on and upon carrying out a search at the Lands Registry realized that the property had been transferred to the Plaintiff pursuant to the court orders herein.s.He was not aware of the fact that the suit had been instituted and was therefore not able to present his defence.t.The Decree which he had since obtained from the Land Registry, it appeared the Summons were either served on the court notice board in the Court House or by advertisement in a Daily Newspaper.u.Either way he was not aware of the pleadings and did not therefore respond to them.v.The Plaintiff’s suit was full of falsehoods, particularly with regard to allegations that the Plaintiff had been in occupation of the subject property for a period of 25 years, since as late as year 2020 when he last visited the site the plot was vacant.w.It was not true that the Plaintiff had been in occupation of the property for 25 years as alleged and that he had witnesses who could verify this. He further deponed that it was not true that the Plaintiff had been carrying out business on the plot since for a good period the same plot was being used by one of his neighbours to store building materials.x.It would appear the suit was the Plaintiff’s scheme to grab the subject plot while taking advantage of the lockdown in the country following the Covid ‑ 19 pandemic.y.The Plaintiff had since obtained a title in respect of the property pursuant to the Decree of the court.z.It was only fair that he should be given time to defend the case since his failure to defend the case could be explained by the fact that he was not personally served with the Summons.aa.In order that substantive justice be done, it was only just and fair that the judgment entered herein be set aside and he be given an opportunity to defend the suit.ab.The Plaintiff stood to suffer no prejudice since if he could prove his case on merit then he would definitely be awarded the claim.ac.The Affiant deponed that all that was hereinabove deponed to was true and correct to the best of his knowledge, information and belief. III. The responses by the Plaintiff 7.The Plaintiff responded to the Application through a 17 Paragraphed replying affidavit sworn by PETER NGOVE MAKAU, sworn on 7th November, 2024, who averred that: -a.He had read and understood the contents of the Supporting Affidavit sworn by Henry Odero Mbira on 2nd December, 2022 and wished to respond as follows.b.The contents of Paragraph 2 of the Supporting Affidavit were admitted to the extent that the Defendant/Applicant was the registered owner of the suit property at the time when the suit was filed.c.He was a stranger to the contents of Paragraphs 3, 4, 6, 7 and 8 of the Supporting Affidavit.d.The contents of Paragraph 5 of the Supporting Affidavit were admitted.e.In response to the contents of Paragraphs 9, 10, 11, 23, 24, 25 and 26 of the Supporting Affidavit, he had peacefully occupied the suit land known as C.R. 24644 situated north of Mtwapa Creek in Kilifi District, measuring approximately 0.0283 hectares, being subdivision number 2010 (original number 1869/11 of Section XII Mainland North as delineated on survey plan number 163746. He argued that he had occupied the property for more than 25 years and no one had ever come to claim ownership as the registered owner had been absent for all those years.f.Further to the above, he had operated a car parking business, cleared the bushy land, and developed the suit property. He annexed photographs marked as “PNM ‑ 1” in support.g.In response to the contents of Paragraphs 12 to 22 of the Supporting Affidavit, he had instructed his advocate on 27th August, 2018 to file an originating summons, which was duly filed at the Environment and Land Court, Mombasa, being ELC No. 185 of 2018, dated 15th August, 2018.h.He was advised by Counsel that on 25th October, 2018 the Defendant/Applicant was served with the originating summons, pleadings and all subsequent documents by way of registered post. He annexed the Affidavit of Service marked as “PNM ‑ 2”.i.On 4th December, 2018 the matter came up before Lady Justice Omollo, who ordered service of the Defendant/Applicant by way of advertisement in the newspaper, which was duly effected. He annexed the order and newspaper extract marked as “PNM ‑ 3”.j.His advocate filed a request for Judgment on 4th March, 2019, which was endorsed, and the suit was set down for formal proof hearing on 22nd October, 2019 before Justice Munyao. A further hearing date was given for 27th January 2020, and Judgment was eventually delivered in his favour on 23rd April, 2020.k.His advocate had followed due procedure as required by law, and the allegation by the Defendant/Applicant that he was not served with court documents was far from the truth. He argued that the Defendant should not benefit from the court’s discretion.l.He was advised by counsel that the present application was filed two years after delivery of Judgment, and the reason for the inordinate delay had not been explained. He further deponed that the Defendant/Applicant had not even annexed the judgment or decree he sought to rely on.m.The Affiant deponed that in response to Paragraphs 27, 28 and 29 of the Supporting Affidavit, he was advised that the Defendant/Applicant had not annexed a draft defence, and therefore the court was unable to ascertain whether the defence raised triable issues.n.The property in question had already exchanged hands and a provisional title deed had been acquired. He annexed a copy marked as “PNM ‑ 4”.o.He swore the affidavit in opposition to the application dated 2nd December, 2022 and urged the court to dismiss the same with costs, arguing that the application was frivolous and intended to waste judicial time.p.All that was deponed to hereinabove was true and correct to the best of his knowledge, information and belief, and where the same contained matters of information and belief, the sources and grounds thereof were respectively set out. IV. Submissions 8.While the Parties were present in Court, they were directed to have the Notice of Motion application dated 2nd December, 2022 be disposed of by way of written submissions and all the parties complied. 9.Pursuant to that all the parties obliged and a ruling date was reserved on notice by Court accordingly. A. The Written Submissions by the Defendant/Applicant 10.The Defendant/Applicant through the Law firm of Messrs. Wameyo Onyango & Associates Advocates filed their written submissions dated 2nd April, 2024 wherein the Learned Counsel submitted that by an application dated 2nd December, 2024 the Defendant/Applicant moved the court for the above stated. The application is supported by the affidavit of Henry Odero Mbira. 11.On the background, the Learned Counsel submitted that the Defendant/Applicant bought the suit property in the year 1993. The property was subsequently transferred to him. The Plaintiff/Respondent herein became the Defendant/Applicant's neighbor since he owns the neighboring plot. Since the Defendant/Applicant did not have funds to immediately develop the property he allowed one of his neighbours one JOSHUA EMBISI to use the property as a place to store building materials. The property thus remained underdeveloped until December, 2020. In the meantime, the defendant visited the plot sometimes in March, 2019 just before the global pandemic Covid - 19 outbreak in Kenya. During this time the plot was vacant and unoccupied. The defendant has exhibited photographs showing the condition of the plot as at March, 2019. The same was vacant and unoccupied. 12.It would appear therefore that by the time this suit was filed sometimes in year 2018, the suit property was actually vacant and unoccupied. After the visit in year 2019 the defendant could not further visit the plot due to Covid - 19 outbreak. Due to the countrywide lockdown and subsequent control of movement from one county to another, particularly from Nairobi to Mombasa the Defendant/Applicant delayed his visit to Mombasa until the year 2021.It was during the visit in December, 2021 that the Defendant/Applicant noticed that construction works were being undertaken in his property. When the Defendant/Applicant enquired on what was going on and upon carrying out a search at the Lands Registry he realized that the property had been transferred to the Plaintiff/Respondent pursuant to the court orders herein. 13.The Defendant/Applicant was not aware of the existence of the suit against him. Indeed service was not effected upon him personally but by substituted service through advertisement in one of the local dailies “the Daily Nation” newspaper or on the court Notice Board in court. Either way, the Defendant/Applicant was not aware of the suit and only became aware of the same in the manner indicated above. The Defendant/Applicant maintained that it was not true that the Plaintiff/Respondent had occupied the suit property for a period in excess of 12 years since by year 2019 when the Defendant/Applicant visited the plot the same was vacant. The plot was, during material period, vacant and the Plaintiff/Respondent knowingly lied on oath with a view to acquiring the property. In this regard the Defendant/Applicant maintained that the very foundation of the claim was a lie and the Plaintiff/Respondent entire action herein is akin to fraud. If given a chance, the Defendant/Applicant would demonstrate to the court by calling witnesses who would confirm that the Plaintiff/Respondent was not even on the land by the time the suit was filed. 14.On the Plaintiff’s response, the Learned Counsel submitted that by a Replying Affidavit sworn on 23rd October, 2023 the Plaintiff/Respondent opposes the application herein. The Plaintiff/Respondent deponed that the summons herein were served through “the Standard” Newspaper advertisement. A casual glance at the said advertisement will reveal the following facts:-a.The advertisement was tiny in relation to other advertisements on the same page and therefore inconspicuous.b.The advertisement was obscured by other advertisements on the same page 15.As mentioned above the Defendant/Applicant did not notice the said advertisement and therefore could not take any action. Had the Defendant/Applicant's attention been drawn to the advertisement he would have certainly responded to the same. The Defendant/Applicant obviously had a strong defence which raises substantial issues for determination which he would have raised had he been aware of the suit. 16.On the Court’s discretion, the Learned Counsel submitted that in deciding on whether to set aside the Judgment the court has unfettered discretion. In the exercise of this discretion they invited the court to consider the following facts that:-a.The subject land was the Defendant/Applicant's retirement investment which he purchased in the manner indicated above.b.The Plaintiff/Respondent was the Defendant/Applicant's neighbor who personally knows the Defendant/Applicant and knows that the Defendant/Applicant was a retiree and owned the property.c.It was contended by the Defendant/Applicant that the Plaintiff/Respondent could not have moved into the property earlier than December, 2021. Since December, 2021 when the Defendant/Applicant visited the plot the same was vacant.d.The issue that would therefore emerge for determination was whether the Plaintiff/Respondent had acquired proprietary interest in respect of the suit property as urged by the plaintiff 17.The Learned Counsel averred that there were important questions that ought to be determined on merit. It was noteworthy that in the Replying Affidavit the Plaintiff/Respondent had not denied the fact that he had not occupied the property for a period of 12 years. His defence was that the property had since exchanged hands. The Defendant/Applicant maintained that the Plaintiff/Respondent did not have any possessory interest in the property until after the orders of the court herein. 18.On the fraud. It was their submission that if the Plaintiff/Respondent had not been on the property for the period pleaded in the suit herein then the entire suit was founded on falsehoods and misrepresentations of facts. That would amount to fraudulently acquiring the said property. Consequently, and in view of the foregoing and upon the setting aside of the judgment herein, this court would still determine whether the Plaintiff/Respondent had a valid title that he could transfer to the third party. If the court finds that the title was acquired through falsehoods then the third parties referred to by the Plaintiff/Respondent would not have the defence of a bonafide purchaser for value without notice. 19.On this question, they referred the court to the following authorities:- 20.In case of:- “Samuel Kamene – Versus - Land Registrar (Kajiado Civil Appeal No. 28 of 2015) eKLR” the Supreme Court observed that:-“In order to be considered a bona fide purchaser for value they must prove that they acquired a VALID AND LEGAL TITLE and secondly that they carried out the necessary due diligence to determine the lawful owner from which they acquired a legitimate title, thirdly that they paid valuable consideration for the purchase of the suit property....” 21.In the case of “Funzi – Versus - County Government of Kwale Mombasa Civil Appeal No. 252 of 2005” the court observed that:-“..........a registered proprietor requires an absolute and indispensable title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefectibility of title sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.” 22.Consequently, it could not be a defence that the plaintiff has, since acquiring the property transferred the same to a third party. If he acquired the property fraudulently then the transaction ought to be nullified. They also referred the Court to the provision of Section 26 of the Land Registration Act, No. 3 of 2012 which provides as follows:-“A certificate title shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner of such land, except in the following circumstances:- 1.If the proprietor was a party to fraud or mis-representation leading to issuance of the certificate of title 2.Where the certificate of title was acquired illegally un-procedurally or through a corrupt scheme”. 23.In the instant case they submitted that the Plaintiff/Respondent acquired the title through fraud and misrepresentation. The Certificate of title was thereafter acquired through a scheme conceived by the plaintiff and which scheme can aptly be described as corruption and illegal. All these were serious issues which ought to be determined on merit. 24.On the unferrered discretion. The Learned Counsel averred that this Court had unfettered discretion to set aside the judgment herein. As was observed in the case of “Shah – Versus - Mbogo & Another (1967) EA4 116” the decision whether or not to set aside “Ex - Parte” Judgment was discretionary and it is not in doubt and that discretion was intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertent or excusable mistake or error but not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. 25.In this case the Defendant/Applicant simply did not notice the advertisement in the Newspaper. This was an inadvertent error or a mistake that was excusable more so in light of the fact that the defendant is a retiree. They also referred this court to the Court of Appeal decision in the case of:- “CMC Holdings Ltd – Versus - Nzioki (2004) eKLR 133” where the court noted that:-“.........In law the discretion that a court of law has in deciding whether or not to set aside ex parte orders was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others 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 excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle”. 26.According to the Learned Counsel, the Defendant/Applicant stood to suffer irreparable loss if the orders sought herein are not granted. He had given the reason for failure to respond to the suit herein. The failure to respond was thus due to circumstances that were both understandable and excusable. The Defendant/Applicant's application was not laced with an intention to deliberately by evasion or otherwise, obstruct or delay the course of justice. 27.Lastly, the Learned Counsel drew the attention of the Honourable Court to the rather unfortunate pattern that was now evolving in suits of this kind. Persons with nefarious intentions file suits for adverse possession when the plots are vacant. This way the registered owners are taken unawares since there was no physical invasion of land at the time of filing the suit. The summons re then served by substituted service and if the same never caught the attention of the owner of the land adverse possession orders was issued. It was after the orders was issued that the land was now physically invaded. At this point any defence is met with the reminder that there are orders issued by the court. This was what was happening in the instant case. 28.The urged the Honourabe Court to allow the prayers of the application as sought with costs. The Plaintiff/Respondent never stood to suffer any prejudice that could not be redeemed by way of costs. B. The Written Submissions by the Plaintiff/Respondent 29.While opposing the application, the Plaintiff/Respondent through the Law firm of Messrs. Angeline Omollo & Associates Advocates filed their written submissions dated 7th November, 2024. M/s. Omollo Advocate submitted that the Defendant/Applicant herein filed a Notice of Motion application dated 2nd December, 2022 and Supporting Affidavit dated 2nd December, 2022 seeking the above stated orders. The Plaintiff/Respondent filed a Replying Affidavit in opposition of the Notice of Motion application. 30.The Learned Counsel relied on the following issues for determination before the Honourable Court:-i.Whether prayer no.2 should be grantedii.Whether the Defendant/Applicant should be granted leave to defend the suit. 31.On whether prayer No. 2 should be granted. The Learned Counsel averred that grant of prayer no. 2 would be an exercise in futility as the property has already exchanged hands and a provisional title deed acquired. 32.On whether the Defendant/ Applicant should be granted leave to defend the suit. The Learned Counsel asserted that the Defendant/Applicants application to set aside the Judgment and Decree issued on 17th June, 2020 was grounded on an allegation by the Defendant/Applicant that they have never been served with any court documents to enable them enter appearance. The Applicant’s motion contained falsehoods as the Plaintiff/Respondent through his Advocate followed the due procedure in prosecuting the case as required by law. The Defendant/Applicant states that he was not aware of the suit Mombasa Environment and Land Court Case No.185 of 2018(OS): Peter Ngove Makau vs Henry Odero Mbira and the proceedings leading to the issuance of the said decree on 17th June, 2020.The above suit herein was instituted by way of originating summons and filed and served upon the Applicant by way of registered post on as per annexure marked as “PNM – 2”. 33.Subsequently, on 4th December, 2018, the said application came up for hearing before lady justice Omollo whereby the court issued an order for the Applicant to serve the Defendant/Applicant with originating summons, pleadings and all subsequent documents in the suit by way of an advertisement in the newspaper and the same was done as per annexure as “PNM – 3”.It was on the strength of the above annexures that the court was satisfied that service upon the Defendant had been effected before interlocutory judgment was entered against the Defendant/Applicants. They submitted that the Defendants/Applicants was relying on a false Affidavit to support their application. 34.The matter was then slated for formal proof hearing, after which submissions was filed by the Plaintiff/Respondent and a date for Judgment taken. The Judgment was made in favour of the Respondent. They relied on the provision of Order 5 Rule 17 (4) of the Civil Procedure Rules, 2010 which provides for service by way of advertisement. This therefore serves a proper service hence knowledge by the Applicant on the existence of the above suit. Order 10 rule 11 of the Civil Procedure Rules 2010, provides as follows:-“When a judgment has been entered under this order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 35.Further they relied on the case of:- “Sheikh t/a Hasa Hauliers – Versus - Highway Carriers Ltd [1988]eKLR” which stated the following:“In the same appeal Kneller JA quoting Harris J in Shah – Versus - Mbogo and Another [1967] EA 116 at 123 BC on the principles governing the exercise of the court's discretion to set aside a Judgment obtained ex - parte stated this discretion (to set aside a Judgment obtained ex - parte) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct the course of justice.....” 36.The discretion of the court should not be used in the Defendant/Applicant favour as they were relying on a false Affidavit and thus an abuse of the court process and should not be countenanced by this Honourable court. 37.They submitted that considering that the Defendant/Applicant were served by way of registered post and subsequently by way of newspaper and chose not to defend the suit, the Judgment entered against them is proper and regular. There was no good reason for setting aside the Judgment considering the fact that the Application is supported by an Affidavit infested with falsehoods.Lastly, this application was filed 2 years after delivery of Judgment and the reason for the inordinate delay has not been explained. 38.According to the Learned Counsel, the Defendant had not annexed his Draft defence therefore the court was unable to know whether the defence raises triable issues. They submitted that failure to annex a Draft Defence renders the application a non-starter.In addressing the question of what amounts to a defence on merit, the court in case of:-“Neem Properties Limited – Versus - Wells Fargo Limited (2021) eKLR” the Honourable court cited with approval the case of “Patel – Versus - EA Cargo Handling Services Limited 1EA 75” at page 76 where sir Ruffus P. stated:-“I agree that where there is a regular Judgment as is the case here the court will not usually set aside Judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merits does not mean in, my view, a defence that must succeed, it means as Sheridan J put it “a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication” 39.Further they relied on the case of “Harun Rashid Khator suing as the representative of Rashid Khator (Deceased) – Versus - Sudi Hamisi & 11 Others [2014] eKLR” wherein it was held that:-“The failure to annex a Draft Defence on an application to set aside a regular ex - parte Judgment is fatal to such an Application. In the circumstances, I find and hold that the Application is a non-starter on that ground alone.” 40.Last but not least, they submitted that the property that is the subject matter of the suit herein has already exchanged hands and a provisional title deed acquired and thus the suit herein is an exercise in futility. 41.In conclusion, the long and short of their submissions was that the Applicants motion should be dismissed as it is devoid of any merit. The Respondent therefore urged the Honourable Court to dismiss the Applicants motion dated 2nd December, 2022 with costs. V. Analysis and Determination 42.I have carefully considered the Notice of Motion application dated 2nd December, 2022, the Supporting Affidavit sworn by the Defendant/Applicant, the Replying Affidavit sworn by the Plaintiff/Respondent on 7th November, 2024, together with the rival submissions with myriad authorities filed herein, relevant provision of Constitution of Kenya, 2010 and statures. 43.From the pleadings and arguments advanced, in order to arrive at an informed, just, fair, reasonable and Equitable decision, the Honourable Court condensed the subject matter, into the following five (5) salient issues for determination. These are application: -a.Whether the Defendant/Applicant was properly served with the Originating Summons in accordance with the provision of Law.b.Whether the court should exercise discretion to set aside the Ex – Parte Judgment.c.Whether the Plaintiff/Respondent has acquired ownership by Land adverse possession.d.Whether allegations of fraud are sustainable.e.Who should bear the costs of the Notice of Motion application dated 2nd December, 2022. ISSUE No. a) Whether the Defendant/Applicant was properly served with the Originating Summon in accordance with the provision of Law. 44.Under this Sub–heading, the Honourable Court will decipher on the substratum of whether the Defendant/Applicant was properly served with summons.The Defendant/Applicant averred that he was never personally served with the originating summons and only became aware of the proceedings after discovering developments on the suit property in December, 2021. He deponed that service was effected either by advertisement in a newspaper or by posting on the court notice board, which he did not notice. He therefore argued that the judgment was obtained without his participation and should be set aside. 45.Conversely, the Plaintiff/Respondent deponed that service was duly effected. He annexed an affidavit of service showing that the Defendant was served by registered post on 25th October, 2018, and further that pursuant to an order of Lady Justice Omollo dated 4th December, 2018, substituted service was carried out by way of advertisement in the Standard Newspaper. The Plaintiff argued that due procedure was followed and the Defendant cannot benefit from his own failure to respond. 46.The law on service is well settled. The provision Order 5 Rule 17 of the Civil Procedure Rules, 2010. According to the provisions of that Order, substituted service may be ordered by the Court in the following circumstances: -17(1)Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court house, and also upon some conspicuous part of the house, if any, in which the Defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.(2)Substituted service under an order of the court shall be as effectual as if it had been made on the defendant personally.(3)Where the court makes an order for substituted service it shall fix such time for the appearance of the Defendant as the case may be.(4)Unless otherwise directed, where substituted service of a summons is ordered under this rule to be by advertisement, the advertisement shall be in Form No 5 of the Appendix with such variations as the circumstances require. 47.However, the substratum of service is not merely formal compliance but whether such service was reasonably calculated to bring the proceedings to the attention of the Defendant/Applicant. 48.It is established law that a party to a case must be made aware of its existence to enable that party to either respond to it or not; see “Ogada – Versus - Mollin (2009) eKLR”. Furthermore, it is trite law that for any reason where summons cannot be served in the ordinary way, personal service, a party can be served by way of substituted service; see “Ephraim Njugu Njeru – Versus - Justin Bedan Muturi and 2 others (2006) eKLR”. 49.In the case of:- “Shah – Versus - Mbogo & Another [1967] EA 116”, the court emphasized that discretion to set aside “Ex – Parte” Judgment exists to prevent injustice arising from excusable mistake or inadvertence. Similarly, in “CMC Holdings Limited – Versus - Nzioki [2004] eKLR”, the Court of Appeal held that where a litigant demonstrates excusable mistake or error, the court should lean towards substantive justice rather than technicality. The jurisprudence underscores that service must be effective, not illusory. 50.The Defendant/Applicant’s contention that he did not notice the advertisement raises legitimate doubt as to whether service was effective. The Plaintiff/Respondent’s advertisement was annexed, but the Defendant/Applicant argued that it was inconspicuous and obscured by other notices. While substituted service is lawful, its effectiveness must be assessed in context. The Defendant/Applicant resided in Nairobi, and movement restrictions during the global Covid ‑ 19 pandemic further complicated his ability to monitor proceedings in Mombasa. 51.The court must also be guided by the provision Article 50 (1) of the Constitution of Kenya, 2010, guarantees fair hearing and sub - article (1) thereof provides as follows:-“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 52.The right not to be condemned unheard is a cardinal principle of natural justice, without which the rule of law would be without equilibrium. This principle, like a golden thread, must be seen to run throughout all court processes even as the court strives to uphold the law and other legal principles. The legitimacy of court decisions and the rule of law find their bearing on this principle. In my view, denying any person the right not to be condemned unheard, is a grave matter that ought not to be taken lightly. The court is under duty to ensure that every party to a suit, is accorded an opportunity to be heard. This opportunity starts with being made aware of any court processes filed against parties to a suit. In the case of:- “Mandeep Chauhan – Versus - Kenyatta National Hospital & 2 Others (2013) eKLR”, the court cited with approval the holding in the case of:- “The Management Committee of Makondo Primary School and Another – Versus - Uganda National Examination Board, HC Civil Miscellaneous Application No. 18 of 2010”, where the Supreme Court of Uganda aptly captured the centrality of this principle of natural justice as follows:-“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice is null and void and of no effect. The rule as captured in the Latin phrase ‘audi alteram partem’ literally translates in to ‘hear the parties in turn,’ and has been appropriately paraphrased as ‘do not condemn anyone unheard.’ This means a person against whom there is a complaint must be given a just and fair hearing.” 53.Denying the Defendant/Applicant an opportunity to defend the suit where service is disputed would offend this constitutional safeguard. The Supreme Court in the case of:- “Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others [2014] eKLR” reiterated that courts must pursue substantive justice and avoid technicalities that defeat fair hearing rights. 54.Accordingly, the substratum of whether the Defendant/Applicant was properly served with summons is not free from doubt. The circumstances, including the inconspicuous advertisement, the Defendant/Applicant’s residence outside Mombasa, and the extraordinary disruption occasioned by the global Covid ‑ 19 pandemic, demonstrate that service may not have been effective in notifying him of the proceedings. This court therefore finds that the Defendant has raised sufficient cause to warrant consideration of setting aside the Judgment so that the matter may be heard on its merits, consistent with the constitutional imperative of fair trial and the overriding objective under the provision Sections 1A and 1B of the Civil Procedure Act, Cap. 21. ISSUE No. b). Whether the court should exercise discretion to set aside the Ex – Parte Judgment. 55.Under this Sub–heading, the Honourable Court will decipher on the substratum of whether the Court should exercise discretion to set aside the judgment delivered on 23rd April, 2020. The Black’s Law Dictionary 9th Ed. at Page 657 defined the term ex parte as that which is: -“Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other…” 56.At Page 1324, it defines ex parte proceeding as a proceeding in which not all parties are present or given the opportunity to be heard. The interpretation of the Court as regards an Ex - Parte hearing and/or Judgement is a hearing and/or judgement that had been undertaken by a Court of law without notice to an adverse party named in the proceeding and/or Judgement. In other words, for a party to demonstrate that a proceeding and/or a judgement is ex-parte, the party must demonstrate that it did not have notice of either the proceeding and/or Judgement in dispute. The failure to be notified of any proceeding and/or Judgement would then by extension mean that the proceeding and/or Judgement was without the hearing of the party not notified of the same. 57.The Defendant/Applicant sought the Court’s indulgence to set aside the Ex - Parte Judgment, contending that he was not properly served with summons and that he has a meritorious defence raising triable issues. He argued that his absence from the proceedings was occasioned by circumstances beyond his control, including the inconspicuous nature of the substituted service and the restrictions on movement during the Covid‑19 pandemic. He further deponed that the Plaintiff’s claim of occupation for over 25 years was false, pointing to photographic evidence of the plot being vacant as late as March, 2019. 58.The Plaintiff/Respondent opposed the application, asserting that service was duly effected by registered post and newspaper advertisement pursuant to court order, and that the Defendant/Applicant cannot benefit from his own inaction. He emphasized that the application was filed two years after judgment, constituting inordinate delay, and argued that the property has since exchanged hands with a provisional title deed issued. 59.The guiding provision of the Law with regards to setting aside of an Ex - Parte Judgment such as the one in this case is to be found in the provision Order 10 Rule 11 of the Civil Procedure Rules, 2010 which provides: -“Setting aside Judgment [Order 10, rule 11.]Where Judgment has been entered under this Order the court may set aside or vary such Judgment and any consequential decree or order upon such terms as are just.” 60.This provision clothes the court with discretionary power to intervene in the interest of justice where a party has been condemned unheard, provided the discretion is exercised judiciously and not capriciously. 61.The discretionary nature of this power has long been affirmed. In the case:- “Philip Kiptoo Chemwolo and Mumias Sugar Company Limited – Versus - Augustine Kubede (1982-1988) KAR”, the Court of Appeal observed 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 facts and circumstances both prior and subsequent and of the respective merits of the parties.” 62.However, the discretion is not intended to assist a litigant who deliberately seeks to obstruct or delay the course of justice. As the Court held in “Shah – Versus - Mbogo & Another [1967] EA 116”:“The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 63.The Court’s first duty in such an application is to determine whether the impugned judgment is regular or irregular. Where service of summons is shown to have been duly effected, but a party fails to enter appearance or file a Defence, the Judgment entered is regular, and the court may exercise its discretion to set it aside on just terms. However, where service was not effected, the judgment is irregular and must be set aside ex debito justitiae. 64.In the case of:- “James Kanyiita Nderitu – Versus – Maries Philotas Ghika & Another [2016] eKLR”, the court stated 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 appearances 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 (see Mbogo & Another – Versus - Shah (supra); Patel – Versus - EA Cargo Handling Services Limited [1975] EA 75, Chemwolo & Another – Versus - Kubende [1986] KLR 492 and CMC Holdings – Versus - Nzioki [2004]1 KLR 173).In an irregular Judgment, on the other hand, Judgment will have been entered against a Defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiciae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the Judgment is irregular, it can set aside the default Judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue. Or whether there has been inordinate delay in applying to set aside the irregular Judgment. The reason why such Judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo – Versus - Attorney General [1986 – 1989] EA 456). The Supreme Court of India forcefully underline the importance of the right to be heard as follows in Sangram Singh – Versus - Election Tribunal, Kotch, AIR 1955 SC 664, at 711:“There must be never present to the mind the fact that ours of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not precluded from participating in them.” 65.It was also stated as follows in the case of:- “Kenya Power & Lighting Co Ltd – Versus - Abdulhakim Abdulla Mohamed & another [2017] eKLR”:“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…” 66.Applying these principles, this Court notes that the Defendant/Applicant has exhibited photographs showing the plot vacant as late as March, 2019, thereby raising triable issues on whether the Plaintiff/Respondent had indeed occupied the property for the statutory period required under the Limitation of Actions Act (Cap 22). The Defendant/Applicant had also explained his absence from proceedings as occasioned by lack of effective service and Covid ‑ 19 restrictions. These circumstances amount to excusable mistake rather than deliberate evasion. 67.On the other hand, the Plaintiff/Respondent has demonstrated that service was effected in accordance with court order. However, the effectiveness of such service remains doubtful, particularly given the Defendant/Applicant’s residence outside Mombasa and the inconspicuous nature of the advertisement. The Court must therefore interrogate whether the Defendant/Applicant’s failure to respond was a genuine oversight or a calculated evasion. On balance, the evidence points to inadvertence rather than deliberate obstruction. 68.In the circumstances, this Court finds that sufficient cause has been demonstrated to warrant the exercise of discretion under the provision of Order 10 Rule 11 of the Civil Procedure Rules, 2010. The Defendant/Applicant should be afforded an opportunity to ventilate his defence, consistent with the constitutional imperative of fair trial under provision Article 50 (1) and the Overriding Objective under the Sections 1A and 1B of the Civil Procedure Act, Cap. 21. The prejudice to the Plaintiff/Respondent can be compensated by way of costs, whereas denying the Defendant/Applicant a hearing would occasion irreparable injustice. ISSUE No. c). Whether the Plaintiff has acquired ownership by the Land Adverse possession. 69.Under this Sub–heading, the Honourable Court will decipher on the substratum of whether the Plaintiff has acquired ownership of the suit property by way of adverse possession. The Plaintiff/Respondent deponed that he had been in peaceful, uninterrupted occupation of the suit property known as C.R. 24644, Sub - division No. 2010 (Original No. 1869/11), Section XII Mainland North, for more than twenty‑five (25) years. He asserted that he had cleared the bush, developed the land, and operated a car parking business thereon. He annexed photographs marked as “PNM ‑ 1” to demonstrate occupation and further argued that the Defendant/Applicant had been absent for all those years, thereby failing to assert his proprietary rights. 70.The Defendant/Applicant disputed this claim, averring that the property remained vacant until December, 2021 when he noticed construction works. He annexed photographs taken in March, 2019 showing the plot vacant, and argued that the Plaintiff’/Respondent claim of 25 years’ occupation was false and fraudulent. He maintained that the Plaintiff/Respondent only moved onto the land after the global pandemic Covid ‑ 19 lockdown period, and therefore had not satisfied the statutory threshold for adverse possession. 71.The law on Land adverse possession is anchored in the provision of Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya), which provides that:-“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him…” 72.Further, the provision of Section 38 (1) of the Limitation of Actions Act, Cap. 22 empowers a person who claims to have become entitled to land by adverse possession to apply to the High Court for an order that he be registered as proprietor. 73.The principles governing adverse possession have been crystallized in Kenyan jurisprudence. In the case of:- “Kweyu – Versus - Omuto [1990] KLR 709”, the Court of Appeal held that adverse possession entails actual, open, continuous, and exclusive occupation adverse to the interests of the true owner for at least twelve years. Similarly, in the case of:- “Mbira – Versus - Gachuhi [2002] 1 E.A. 137”, the Court emphasized that mere occupation is insufficient unless it is adverse, notorious, uninterruptedly, continuously, exclusive and without permission. 74.Applying these principles, the Plaintiff/Respondent’s claim of 25 years’ occupation is contested by the Defendant/Applicant’s evidence showing vacancy as late as year 2019. The Plaintiff/Respondent annexed photographs of developments, but the Defendant/Applicant countered with photographs showing the land vacant. This contradiction raises a triable issue as to whether the Plaintiff/Respondent’s occupation was continuous, exclusive, and adverse for the statutory period. 75.The Court must also consider whether the Plaintiff’/Respondent alleged use of the land as a car park and clearing of bush constituted sufficient acts of possession. In the case of:- “Wambugu – Versus - Njuguna [1983] KLR 172”, the Court held that acts inconsistent with the owner’s enjoyment of the land amount to adverse possession. However, if the Defendant/Applicant permitted a neighbour to store building materials on the land, such permissive use would negate exclusivity by the Plaintiff/Respondent. 76.The jurisprudence further requires that possession be “nec vi, nec clam, nec precario” — without force, secrecy, or permission. If the Plaintiff’s occupation was permissive or sporadic, it cannot ripen into adverse possession. The Defendant’s evidence of vacancy and permissive use by neighbours undermines the Plaintiff’s assertion of exclusive possession. 77.On balance, the evidence before the Court does not conclusively establish that the Plaintiff/Respondent had been in occupation for the requisite twelve years prior to filing suit in the year 2018. The Defendant/Applicant’s evidence of vacancy in year 2019 and his assertion that the Plaintiff/Respondent only moved in during the year 2021 cast serious doubt on the Plaintiff/Respondent’s claim. 78.Accordingly, this Court finds that whether the Plaintiff/Respondent has acquired ownership by adverse possession is a triable issue requiring full hearing on merits. The contradictory evidence cannot be resolved summarily, and justice demands that both parties be afforded an opportunity to ventilate their claims through oral testimony and cross‑examination. ISSUE No. d). Whether allegations of fraud are sustainable. 79.Under this Sub–heading, the Honourable Court will decipher on the substratum of whether the allegations of fraud raised by the Defendant/Applicant against the Plaintiff/Respondent are sustainable.The Defendant/Applicant deponed that the Plaintiff/Respondent’s claim of occupation for over twenty‑five (25) years was false and fraudulent. He annexed photographs showing the plot vacant as late as March, 2019 and argued that the Plaintiff/Respondent only moved onto the land in December, 2021. He further contended that the Plaintiff/Respondent knowingly misrepresented facts to the Court in order to obtain title, thereby engaging in a scheme to grab the property during the Covid‑19 lockdown. The Defendant/Applicant described this as a deliberate and calculated attempt to mislead the Court and dispossess him of his retirement investment. 80.The Plaintiff/Respondent denied these allegations, maintaining that he had been in peaceful occupation for over 25 years and had developed the land by clearing bush and operating a car park. He annexed photographs marked as “PNM ‑ 1” and argued that the Defendant/Applicant had been absent for all those years, thereby failing to assert his proprietary rights. He further asserted that service was duly effected and that the Defendant/Applicant’s application was frivolous, filed only as an afterthought once developments on the land had commenced. 81.The law on fraud in land transactions is set out in the provision of- Section 26(1) of the Land Registration Act, 2012, which provides:“A certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor, shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 82.The jurisprudence is clear that fraud must be specifically pleaded and strictly proved. In “Arthi Highway Developers Ltd – Versus - West End Butchery Ltd & 6 Others [2015] eKLR”, the Court of Appeal held that allegations of fraud must be proved to a standard higher than a balance of probabilities but not beyond reasonable doubt. Similarly, in the case of:- “Samuel Kamene – Versus - Land Registrar, Kajiado Civil Appeal No. 28 of 2015”, the Supreme Court emphasized that indefeasibility of title cannot protect fraudulent acquisition, and that a purchaser must demonstrate acquisition of a valid and legal title. 83.In the case of:- “Funzi Island Development Ltd (Supra)”, the Court observed that indefeasibility of title arises only if the allocation was legal, proper, and regular. A court of law cannot sanction an illegality or irregularly obtained title.Applying these principles, the Defendant/Applicant has raised serious allegations that the Plaintiff/Respondent misrepresented facts regarding occupation of the land. The Defendant/Applicant’s evidence of vacancy in the year 2019 and his assertion that the Plaintiff/Respondent only moved in during the year 2021 cast doubt on the Plaintiff/Respondent’s claim of 25 years’ occupation. If proven, such misrepresentation would amount to fraud within the meaning of the provision Section 26 (1), thereby impeaching the Plaintiff/Respondent’s title. 84.On the other hand, the Plaintiff/Respondent has annexed photographs and affidavits asserting long‑term occupation and development. These conflicting accounts cannot be resolved summarily. Fraud, being a serious allegation, requires strict proof through oral testimony, cross‑examination, and production of corroborative evidence. The Court must weigh whether the Plaintiff/Respondent’s evidence demonstrates continuous occupation or whether the Defendant/Applicant’s evidence of vacancy negates the claim. 85.Accordingly, this Court finds that the allegations of fraud are sustainable as triable issues. They raise weighty questions on whether the Plaintiff/Respondent acquired title through misrepresentation or a corrupt scheme. These issues must be determined on merit at a full hearing, consistent with the principles in “Arthi Highway Developers (Supra)”. Therefore, based on the principle of “fair hearing” under the provision of Articles 25 ( c ), 50 ( 1 ) & ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, the Court cannot, at this interlocutory stage, conclusively pronounce on fraud, but it must acknowledge that the Defendant/Applicant has raised sufficient grounds to warrant full ventilation of the matter. In a nutshell this a case for Re – opening and hence a Re – Trial. ISSUE No. e). Who bears the Costs of the Notice of Motion application dated 2nd December, 2022 86.Under this Sub–heading, the Honourable Court will decipher on the substratum of who bears the costs of the Notice of Motion application dated 2nd December, 2022. The Defendant/Applicant prayed that costs be provided for, while the Plaintiff/Respondent urged the Court to dismiss the application with costs, arguing that the same was frivolous and intended to waste judicial time. 87.It is now well established that the issue of Costs is at the discretion of the Court. Costs mean an award that is granted to a party at the conclusion of the legal action and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 88.In the present case, the Court has found that the Defendant/Applicant has demonstrated sufficient cause to warrant the setting aside of the Judgment under the provision of Order 10 Rule 11 of the Civil Procedure Rules, 2010. This means the Defendant/Applicant has succeeded in his application to the extent of re - opening the matter for hearing on merits. The Plaintiff/Respondent, though opposing the application, will not suffer prejudice beyond the ordinary inconvenience of litigation, as he will still have the opportunity to prove his claim at trial. 89.Balancing the equities, the Court is persuaded that the Plaintiff/Respondent should not be unduly burdened with costs at this interlocutory stage, given that the substantive dispute remains unresolved. Equally, the Defendant/Applicant has demonstrated excusable mistake and raised triable issues, which justifies the Court’s discretion in his favour. 90.Accordingly, this Court orders that the costs of the Notice of Motion application dated 2nd December, 2022 shall be in the cause. This means that costs will abide the final outcome of the suit, ensuring fairness to both parties and aligning with the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 to facilitate just, expeditious, and proportionate resolution of disputes. VI. Conclusion and Disposition. 91.Ultimately, in view of the foregoing detailed and expansive analysis of the Notice of Motion application dated 2nd December, 2022, and based on the principle of Preponderance of Probabilities and the balance of Convenience, this Honourable Court arrives at the following decision and makes the specific orders set out below:-a.THAT the Notice of Motion application dated 2nd December, 2022 by the Defendant/Applicant, Henry Odero Mbira, be and is hereby found to have merit, hence its allowed.b.THAT the Judgment delivered on 23rd April, 2020 in favour of the Plaintiff/Respondent, Peter Ngove Makau be and is hereby set aside pursuant to the Court’s discretion under Order 10 Rule 11 of the Civil Procedure Rules, 2010.c.THAT sufficient cause has been demonstrated by the Defendant/Applicant to warrant the setting aside of the Judgment, the circumstances constituting excusable mistake and inadvertence.d.THAT the Honourable Court finds that the Defendant/Applicant has raised triable issues regarding the Plaintiff’s claim of Land adverse possession under the provision of Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22 and allegations of fraud under Section 26 (1) of the Land Registration Act, No. 3 of 2012, which must be determined on merit at a full hearing.e.THAT the Defendant/Applicant be and is hereby granted leave to file and serve his Statement of Defence and/or Counter - Claim and fully comply pursuant to the provision of Orders 7 and 11 of the Civil Procedure Rules, 2010 WITHIN TWENTY ‑ ONE (21) DAYS from the date hereof, and the matter shall thereafter proceed to hearing on the merits.f.THAT there shall be a mention on 5th October, 2026 for compliance and further direction thereof before Justice Olola, ELC, Mombasa.g.THAT the costs of the Notice of Motion application dated 2nd December, 2022 shall be in the cause, to abide the final outcome of the suit, in line with Section 27 of the Civil Procedure Act, Cap. 21.IT IS SO ORDERED ACCORDINGLY. RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS………17TH ……DAY OF ……….JULY..……..2026.…………..……........……………….HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURTAT MOMBASARuling delivered in the presence of:a. M/s. Firdaus Mbula, the Court Assistant.b. Mr. Ochami Advocate holding brief for Mr. Wameyo Advocate for the Defendant/Applicant.c. No appearance for the Plaintiff/Respondent.