https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4378

Opero v Musumba (Environment and Land Appeal E005 of 2023) [2026] KEELC 4378 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 4378 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Appeal E005 of 2023 L Waithaka, J June 17, 2026 Between Vincent Wabwire Opero Applicant and Kelesenzia Onyango Musumba Respondent (Being an Appeal from the ruling of Hon. E.A Nyaloti CM delivered on 18th April 2023 in Busia CMC MELC E019 OF 2021) Judgment 1.The circumstances leading to filing of this appeal are that vide a ruling delivered on 18th April 2023 in Busia CMC ELC Case No. E19 of 2021, the trial magistrate, Hon. E.A Nyaloti CM, dismissed with costs the applicant/appellant’s Notice of Motion (application) dated 19th January, 2023. Through the application, the applicant/appellant sought the following orders:-a.Certification of the application as urgent and deserving to be heard ex parte in the first instance;b.An order of stay of execution of the ex parte judgment and decree and all consequential orders pending the hearing of the application inter partes;c.An order of stay of execution of the ex parte judgment and decree and all consequential orders pending the hearing and determination of the application;d.That the ex parte proceedings, judgment, decree and all subsequent and consequential orders be set aside and the 2nd defendant be granted leave to enter apperance and file his defence;e.That Jacob Nyongesa Musumba be joined in the suit as the 2nd plaintiff;f.That costs of the application be provided for. 2.The application was premised on the ground that the respondent had, in execution of the impugned judgment of the court, issued the applicant/appellant with an eviction notice threatening to evict him and his tenants from the suit property; that the applicant/appellant was never served with summons to enter appearance and attendance pleadings to enable him to enter appearance and participate in the proceedings; that the applicant/appellant was condemned unheard; that the applicant/appellant has a good defence to the plaintiff/respondent’s case and that unless the orders sought are granted, the applicant/appellant may suffer irreparable loss and prejudice. 3.In reply and response to the applicant’s/appellant’s application, the respondent swore an affidavit (replying) dated/sworn on 3rd March 2023 in which she inter alia deponed as follows:-“... upon filing this claim I took out summons to enter apperance which I entrusted upon a duly licensed process server to effect service upon the defendant; that the process server effected service upon the defendant in the company of one Calistus Wafula; the court being satisfied with the propriety of service slated the matter for mention for directions; that on 23/3/2022 the applicant attended court and was granted leave to file defence as can be evidenced by the court record; that the matter was then fixed for hearing on 18/4/2022; that the defendant was at all instances, served with notices and affidavit of service filed in court. See annexture KM/1; that I am aware that the defendant failed to comply and the court proceeded to hear the matter to conclusion in my favour; that the defendants were ordered to surrender vacant possession of Bukhayo/Mundika/5124 and in default be evicted forthwith; that the defendant/applicant was offered opportunity to be heard but either through negligence or indolence failed to utilize it; that the rules of natural justice do not require everyone to be heard but only require everyone to be given an opportunity to be heard, which opportunity the defendant was given as demonstrated in (c) above...” 4.In a rejoinder, the applicant/appellant filed a supplementary affidavit dated 6th March, 2023 in which he deponed as follows:-“ 2....That I was never served with summons to enter aperance and this has been proved by the filed defective affidavit of service; that the subsequent affidavits of service were fictitiously drawn and filed in court to mislead that service had been done upon myself when I had not received the summons to enter apperance or any of such subsequent hearing notices; that the plaintiff had conducted the proceedings herein through concealment so that she could get a free pass with her vindictive son to demolish my permanent houses; that the respondent has not shown the kind of prejudice she will suffer when I am given a chance to testify in defence; that my statement of defence raises triable issues and I also have a counterclaim which should be tried together with the plaint...” 5.It is on the basis of the foregoing pleadings filed by the parties, that the learned trial magistrate dismissed the application with costs to the applicant. 6.Aggrieved by the decision of the learned trial magistrate the applicant/appellant appealed to this court on the following grounds:-i.That the trial magistrate erred in law and fact in failing to address the issue of setting aside the ex parte judgment;ii.That the trial magistrate erred in law and fact in concentrating and addressing only the issue of stay of execution; andiii.That the ruling was against the weight of the evidence on record. 7.The appellant prays that the appeal be allowed with costs, the trial court’s ruling dated 18th April 2023 be set aside and substituted with a ruling allowing the orders sought in the application dated 19th January 2023 and setting aside the ex parte judgment and decree dated 22nd November 2022. 8.The respondent filed a reply to the appeal dated 10th March 2026 in which she depones/contends that setting aside judgment is discretionary and the law requires a party seeking to set aside judgment to show sufficient cause; that the appellant has not demonstrated that the trial court acted on wrong principles or misapprehended facts hence no clear misdirection; that rules of natural justice do not demand that everyone must be heard; it only requires that everyone be given an opportunity to be heard. The respondent further depones that the record of the subordinate court shows that the appellant was indeed granted an opportunity to defend the suit but failed to do so. 9.The respondent maintains that the appellant appeared before court and sought for time to file his defence but upon bein granted time failed to do so. The respondent submits that allowing the appeal would reward delay and greatly prejudice her. 10.Pursuant to directions given to the effect that the appeal be disposed of by way of written submissions, parties to the appeal filed submissions, which I have read and considered. 11.In exercise of the duty vested in this court as a first appellate court I have re-evaluated the evidence adduced before the lower court with a view of of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348. 12.From the pleadings filed herein and the submissions filed by the parties, l find the sole issue for the Court’s determination to be whether the appellant has made up a case for being granted the orders sought in his Memorandum of Appeal. 13.Concerning that issue, I have read and considered the affidavits of service relied upon in support of the respondent’s claim and/or submission that the appellant was served with summons to enter apperance and hearings notices. The affidavits show that the summons were served on a person said to be the 2nd defendant’s mother. 14.Whereas the respondent claims that the appellant subsequently appeared in court and sought for leave to file his defence, that fact is incapable of being ascertained from the court record because the record only indicates “defendant present”, without indicating which of the two defendants was present. 15.Service of summons to enter apperance on the person alleged to be the appellant’s mother, in the circumstances of this case, was not proper service on the appellant. No proper basis was laid for service of the summons to enter appearance on a person, who it was not demonstrated was living with the appellant to warrant serving her as an agent of the appellant. In the affidavit sworn in support of his application for setting aside the ex parte judgment, the appellant deponed that he was living in Nairobi and not the area where service was effected. That deposition was never controverted by the plaintiff/respondent. 16.Whereas under Order 5 Rule 12 of the Civil Procedure rules, the service may be made on an adult member of the family of the defendant, that mode of suffice can only be resorted to after a reasonable number of attempts have been made to effect service on the defendant in person without success. Even then, the law requires that service be effected on an adult member of the family of the defendant living with him. In that regard, see Order 5 Rule 12 of the Civil Procedure Rules which provides as follows:-“Where in any suit, after a reasonable number of attempts have been made to serve the defendant and the defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or any adult member of the family of the defendant who is residing with him”. 17.There is nothing in the affidavit of service filed in the suit hereto, that shows that the service allegedly effected on the appellant’s mother was effected after the plaintiff/respondent was unable to find the defendant/appellant for purpose of effecting personal service on him and/or that the person served was residing with the appellant to warrant service of summons on her. For the foregoing reasons, I find the service allegedly effected on the appellant to have been irregular and incapable of forming the basis of the ex parte judgment issued against him. 18.Whilst the application before the trial court had a prayer for setting aside the ex parte judgment entered against the appellant, the ruling of the Court in respect of the application shows that the trial court did not consider that prayer. No reasons whatsoever were given for failure to consider that prayer. 19.In James Kanyiita Nderitu v Marios Philotas Ghikas (2016) KECA 470 (KLR) the Court of Appeal stated/held:-“...In an irregular judgment, on the other hand, judgment would have been entered against a defendant who was not served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, 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 consideration 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 allegation 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”. 20.Having determined that there is no evidence that the appellant was properly served with summons to enter appearance and/or hearing notices, I find and hold that the proceedings that culminated in the impugned judgment were irregular null and void. 21.The upshot of the foregoing is that I find the appeal to have merit and allow it in the following terms:-a.I set aside the ruling of the trial court delivered on 18th April 2023 dismissing the applicant/appellant’s application and substitute it with a ruling allowing the applicant/appellant’s application dated 19th January 2023 in terms of prayer (d) that is to say, I set aside the ex parte proceedings and judgment dated 22nd November 2022, the decree and all subsequent and consequential orders emanating therefrom;b.I grant the applicant/appellant leave to enter apperance and file his defence to the plaintiff/respondent’s suit;c.I also award the applicant/appellant the costs of the application dated 19th January 2023 and this Appeal. 22.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 17TH DAY OF JUNE, 2026.L. N. WAITHAKAJUDGEIn the presence of-Ms. Omollo h/b for Mr Luchivia for the AppellantN/A for the RespondentCourt Assistant: Sikolia