https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3506

Nchore v Aure (Environment and Land Case 28 [E025] of 2021) [2026] KEELC 3506 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3506 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case 28 [E025] of 2021 CK Nzili, J June 10, 2026 Between Johnson Nyamatari Nchore Plaintiff and Mary Aure Defendant Ruling 1.Through an application dated 10/3/2026, the court is asked to set aside the ex parte judgment entered on 29/7/2021 together with all the consequential orders, stay further execution of the said judgment, and grant leave to the defendant/applicant to file an appearance and defence to the suit. 2.The reasons are contained on the face of the application and in a supporting affidavit of Mary Aure, sworn on 10/3/2026. The applicant deposes that she only learned of the existence of the suit through a third party, the purported service of summons through a process server is suspect and needs cross-examination to establish the veracity of the contents of the affidavit of service, and that she has lived on the suit land with her husband since 1982 until she was forcefully evicted from the land in 2022. 3.The applicant deposes that the suit parcel of land was allocated to her father-in-law by the Settlement Fund Trustees, where they established their matrimonial home. 4.The applicant deposes that after the forceful eviction, she was also committed to civil jail, though she had reported the same to the area chief and the police as per the letter of Chief Kapkoi annexed as MA-(1). The applicant deposes that she has a good defence as per the annexed draft marked MA-(2). 5.The application is opposed through a replying affidavit sworn by Johnson Nyamatari Nchore, on 18/3/2026, for being an abuse of the court process, characterised by inordinate, unreasonable, unexplained delay, and as full of falsehood. 6.The respondent deposes that the application is being filed 4 years, 7 months, and 10 days after the judgment and decree were issued on 29/7/2021 and 16/9/2021, respectively. The respondent deposes that the applicant was duly served with summons to enter appearance and all the other pleadings, whereof she acknowledged service as per the affidavit of service dated 4/5/2021, attached as JN-(2), after which she was again served with a bill of costs on 21/12/2021 by the same process server as per an affidavit sworn on 21/12/2021, attached as an annexure JN(3). 7.The respondent deposes that the eviction order issued on 15/2/2022 was implemented on 15/6/2022, with police assistance after the applicant failed to honour the decree as per the eviction order, letters, and court response to the authenticity of the order attached as annexure JN-(4). 8.The respondent deposes that it is not true that the applicant was in prison at the time of the eviction in June 2022, since the arrest and subsequent committal to civil jail for default to satisfy the decree occurred on 13/2/2023. 9.The respondent deposes that from the foregoing, the applicant was all along aware of the proceedings, yet she chose not to challenge the judgment for over three years in court since those appearances on 13/2/2023, 12/3/2023, and 12/4/2023. The respondent deposes that an NTSC was issued on 18/8/2022 and served upon the applicant on 5/9/2022 as per annexure marked JN-(5). 10.Therefore, the respondent deposes that the decree has been fully executed and perfected, from which he has since sold the suit land to third parties; he is no longer in possession, making an order for stay futile. 11.The applicant relies on written submissions dated 18/3/2026. Reliance is placed on James Kanyiita Nderitu & another -vs- Marios Philotas Ghikas & another [2016] eKLR, Jackson Mbaluka Mwangangi vs Onesmus Nzioka & Another HC Civil Appeal No. 120 of 2019. 12.On the other hand, the plaintiff/respondent relies on written submissions dated 18/3/2026. Reliance is placed on Telkom (K) Ltd vs Ochanda (Suing on behalf of 996 former employees of Telkom (K) Ltd [2014] KECA 600 [KLR], Union Insurance Co. of (K) Ltd vs Ramzan Abdul Dhanji Civil Appl. Nai 179 of 1998, Issa Leshan Keres & Another vs Kipoki Oren Tasur & Others Civil Appeal No. 5 of 2004, Omwoyo vs Africa Highland & Produce Co. Ltd [2002] 1KLR 698, and Moses Kimaiyo Kipsang vs Geoffrey Kiprotich Kirui & Others [2022] eKLR. 13.What the defendant/applicant is seeking is the setting aside of the judgment entered by this court on 29/7/2021 in default of appearance, and to be allowed to defend the suit based on the draft defence she has attached to her affidavit in support. She also seeks to stay the execution of the decree and all the consequential orders. 14.The plaintiff/respondent terms the delay of 4 years, 7 months, 10 days as inordinate, unreasonable, and unexplained. Equally, the respondent says that service of court processes was properly done against the defendant by the same process service more than once, that the defence is a sham, and that the decree has already been executed and perfected. 15.The discretion of the court to set aside a regular or irregular judgment is wide and must be exercised judiciously based on sound principles. In Philip Kiptoo Chemwolo & Another vs Augustine Kubede [1982-88] KLR 1036, the court said that courts have 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 upon the respective merits of the parties. 16.In Kimani vs MC Commel [1996] EA 545, the court said that where a regular judgment is entered, the court would not usually set aside the judgment unless it was satisfied that there is a triable issue. 17.In JKUAT vs Musa Ezekiel Oebal [2014] eKLR, and in Shah -vs- Mbogo [1967] EA 116, the court said that an ex parte judgment is set aside to avoid injustice or hardship resulting from an accident, inadvertence or excusable error, but not to assist a person who has deliberately or, whether by evasion or otherwise, obstructed or delayed the cause of justice. 18.In Union Insurance Co. of (K) Ltd vs Ramzan Abdul Dhanji Civil Appl. Nairobi 179 of 1998, the court said that whereas the right to be heard is a basic natural right which should not be lightly taken away, where the applicant had been given a chance to be heard, but chose not to do so, the law is not that a party must be heard in every litigation. The court said that parties must be given a reasonable opportunity to be heard, and once the opportunity is given and not utilised, then the only point on which the party not utilising the opportunity can be heard is why they did not utilise it. 19.In Issa Leshan Keres & Others vs Oren Tasur & Others, Civil Appeal No. 5 of 2004, the delay despite notice of an impending execution was three years in this application. 20.In Omwoyo vs African Highland & Produce Co. Ltd [2002] 1KLR 698, the court, faced with circumstances as in the instant case, had to weigh in and balance the interests of the parties. The court said that in doing so, the conduct of the applicant, facts, and circumstances of each case must be considered. 21.Another consideration coming out from the caselaw cited above is the delay in seeking the orders. Though the law has defined what the minimum and maximum delays are, it all depends on the circumstances of each case. The respondent raises the delay herein as disentitling the applicant of the court’s discretion. Once raised, the applicant, therefore, must explain the delay of 4 years, 7 months, and 10 days, generally and in particular, the last three years since becoming aware of the execution process. Other than saying that the applicant was in jail, it is not clear without a certificate of imprisonment if she was in a civil jail for the last three years. 22.The applicant has deposed that she contests service of court processes, saying that she was not duly served with a summons to enter an appearance. The applicant had an opportunity at the hearing of this application to seek to cross-examine the process server who, as deposed by the plaintiff, has served her with court processes, not once or thrice but many times. Where the service of court processes is in doubt or contested, the best way is to seek the process server to be cross-examined. 23.Failure to insist on cross-examining the process server, in my considered view, leaves doubts in the mind of the court as to the allegations by the applicant that she was never aware of the suit at all for over four years, Similarly, I find it unconvincing why the applicant waited upto this stage to seek to upset the judgment yet she was brought to court a while ago during the notice to show cause which eventually led to a committal to civil jail. The court finds the application an afterthought. Moreover, the alleged third parties who told or informed the applicant about the existence of the suit, including when they told her, have not been disclosed or affidavits to that effect. See Nancy Musoti vs Joyce Mbete Katisi [2019] KEHC 35781 [KLR] and in Simon Simonse vs Worldwide Movers (K) Ltd [2012] eKLR. My finding is that the applicant was properly served with a summons to enter an appearance and later with all the subsequent court processes as of February 2023. 24.Notwithstanding the undisputed service of court processes, the main concern of the court remains to do justice to the parties. In Patel vs E.A. Cargo Handling Service Ltd [1974] EA 75, the court said that it has the discretion to set aside such a judgment if there is a defence on the merits. Such a defence need not succeed, but must raise triable issues requiring a full hearing on the merits. 25.In this application, the applicant relies on a draft defence and counterclaim attached as annexure marked MA-(2). The court has keenly looked at the same vis-à-vis what the applicant has deposed. In paragraphs 7 and 8 of the supporting affidavit, the applicant deposes that she was residing on the suit land between 1982 and 2022, when she was forcefully evicted from it. She says that the suitland had been allocated to her father-in-law by the Settlement Fund Trustees. Those facts are also pleaded in the draft defence and counterclaim at paragraphs 3, 4, and 5 thereof. 26.What I find curious, unfortunately, is that there are no annexures attached to the supporting affidavit showing the particulars of allocation, by way of letter of offer, acceptance of the offer, or payment of the allocation, fees or charges, and the perfecting of the charge and the discharge of the charge. Such documents would have been a basis of showing that the applicant unlike the respondent, had superior interests or rights which, if granted an opportunity to be heard by this court, she would have impeached the title held by the respondent. 27.Delay defeats equity, and he who comes to equity must come with clean hands. The applicant in paragraph 7 of the supporting affidavit admits that the eviction took place in 2022. The chief’s letter is dated 26/5/2023. 28.Paragraph 4 thereof speaks of the allocation of Plot No. 612 to the father-in-law in 1980, and its subsequent repossession and re-allocation to other allotees who obtained title deeds, out of default of the father-in-law in meeting the offer letter terms. If, then, the applicant, as of May 2025, knew of those facts, the question is why wait to attempt to defend the suit or ventilate such a defence after almost three years by way of this application. 29.In James Kanyiita Nderitu & Others vs Marios Philotas Ghikas & another Civil Appeal No. 8 of 2015, the court addressed itself to the distinction between a default judgment that is regularly entered and one that is irregularly entered. What we have here is a regular judgment where the applicant was duly served with summons to enter appearance but for unexplained reasons failed to enter an appearance or file a defence, or in 2023, move the court to set aside the regular judgment, to be granted an opportunity to be heard, under Order 10 Rule 11 of the Civil Procedure Rules, as held in Mbogo & Another vs Shah. 30.In this application, I have not found any inconsistencies in the process server’s affidavits of service, unlike in James Kanyiita Nderitu & Another vs Marios Philotas Ghikas caselaw. The upshot is that I find the application dated 10/3/2026 lacking merit. It is dismissed with costs. 31.Orders accordingly. RULING DATED, SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF JUNE 2026.HON. C.K. NZILIJUDGE, ELC KITALE.RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF JUNE 2026.In the presence of:Court Assistant - Matui/NancyMr. Teti for the plaintiff/respondentMs. Arunga for the defendant/applicant