https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2939

Mongony v Mongony (Environment and Land Case 141 of 2017) [2026] KEELC 2939 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2939 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 141 of 2017 CK Yano, J May 14, 2026 Between Samoei Mongony Plaintiff and Musa Mongony Defendant Ruling 1.The Defendant/Applicant filed the Notice of Motion Application dated 30th March, 2026 seeking the following reliefs:-1.Spent2.Spent3.That the judgment dated 23rd April, 2020 and all consequential orders be set aside.4.That the defendant/applicant be allowed to unconditionally defend this suit and the matter be heard and determined on merits and the draft defence annexed herewith be deemed as duly filed and served upon payment of the requisite court fees.5.That costs of this application be provided for. 2.The application is premised on the grounds set out on the face of it as well as the defendant’s Supporting Affidavit thereto of even date. According to the Defendant, the matter herein proceeded without his knowledge. He claims that he was not served with the pleadings, summons to enter appearance, mention and hearing notices, notice of entry of judgment, decree or the 90 day statutory notice. 3.The Defendant averred that as a result, he was in darkness about the pendency of the matter and only came to know of the eminent eviction through friends and relatives. That the Plaintiff is a close relative, and he did not know why he secretly conducted the proceedings and then ambushed him with eviction, denying him the right to make representations in the matter. He further claims that he has been in possession of the suit property since time immemorial and even interred his father’s remains thereon. 4.He explained that he entered into an arrangement with the Plaintiff’s father to exchange his land in Salgaa, Nakuru County with the suit property, thus he has a good defence against the suit. He also explained that the title was processed in the Plaintiff’s name since the allotment letter was in his name. He averred that it is in the best interest of justice that he be granted an opportunity to make representations in the matter. That the Plaintiff will suffer no prejudice if the orders are granted. That the application has been made expeditiously and without delay. 5.In response, the Plaintiff/Respondent filed a Replying Affidavit sworn on 8th April, 2026. The Plaintiff claims that judgment in this matter was delivered on 23rd April, 2020 wherein the Defendant was ordered to vacate the land within 30 days. He denied the allegation that the Defendant was not served, and asserted that all procedural requirements were followed and the Defendant had ample notice and opportunity to be heard. He disputed the Defendant’s claim of existence of a good defence. 6.The Plaintiff averred that the Defendant cannot justify concealment of the proceedings or the alleged darkness as a grounds to stay execution of the judgment. He added that the alleged exchange dealings do not invalidate the judgment. The Plaintiff averred that the stay will cause irreparable harm and prejudice to him as the judgment has been due for a long period. He therefore asked the court to dismiss the application for stay of execution with costs, and allow the execution of the judgment dated 23rd April, 2020. Directions on Hearing of the Application; 7.When the matter came up for hearing on 13th April, 2026 Counsel for the Defendant/Applicant informed the court that he would rely entirely on the application and supporting affidavit, as well as the replying affidavit. He asked the court to fix a date for ruling. On the same date, the Plaintiff/respondent also indicated that he had filed a response and was ready to take a date for ruling. Analysis and Determination: 8.I have carefully considered the application herein alongside the response filed thereto. I am of the view that the singular issue that arises for determination is whether the orders sought by the Defendant herein should issue. 9.From the record, the present suit was commenced by way of a Plaint dated 29th March, 2017 and filed in court on the same date. In the said Plaint, he claimed ownership of a parcel land known as no. Uasin Gishu/Kondoo/ 766 (the suit property herein). He further claimed that the Defendant had trespassed into his land despite having his own land, which is land parcel no. Uasin Gishu/Kondoo/765. The Plaintiff asked for an order evicting the Defendants and his servants or agents, as well as costs of the suit. 10.Summons to Enter Appearance were duly executed on 30th March, 2017 and issued by this court in the name of the Defendant. Per the Affidavit of Service sworn on 27th April, 2017 by Silas K. Kandie, a Court Process Server, the Defendant was duly served with the said summons and the Plaint. He deponed that the Defendant received the documents but refused to sign the return copy. 11.On 27th April, 2017 the Plaintiff filed a Request for interlocutory Judgment citing failure by the Defendant to enter appearance or file a defence within the prescribed period. This was served on the Defendant on 3rd September, 2019 going by the Affidavit of Service sworn by Joseph Mwaniki Nyoto on 19th September, 2019. Thereafter, a notice for formal proof hearing was served by the same Joseph Mwaniki Nyoto on 5th November, 2019. 12.Having failed to enter appearance and file a defence, the judgment was entered pursuant to Order 10 Rule 6 of the Civil Procedure Act after the Plaintiff had filed a request for interlocutory judgment. However, the Defendant now claims that he was never served with the pleadings or the summons to enter appearance. For this reason, the Defendant has asked that the judgment delivered by this court be set aside and he be allowed to defend the suit. 13.The law on setting aside of a default judgment is found under Order 10, Rule 11 of the Civil Procedure Rules, 2010 which provides thus:-11.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. 14.Order 10 Rule 11 thus provides for setting aside of judgment entered under Order 10. The power to set aside default judgment is however discretionary as was held in Berlin Equipment Ltd & Another vs Tata Africa Holdings (K) Limited [2026] KECA 100 (KLR), the Court of Appeal stated that: -“15.… It is common ground that the jurisdiction under Order 10 rule 11 is discretionary. The rule empowers the court to set aside or vary a default judgment “upon such terms as are just.” The principles guiding the exercise of that discretion are well settled. The discretion exists to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, and is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice, as articulated in the celebrated case, Shah v Mbogo (1967) EA 166. 15.The law has been that if there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court. Courts have further held that such a judgment is not set aside in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process. 16.The first step therefore is to determine whether the Defendant was actually served with the pleadings and summons in this case. As earlier indicated, the Plaint and summons in this case are said to have been served on the Defendant by one Silas K. Kandie, a Court Process Server, who swore an Affidavit of Service on 27th April, 2017 to that effect. He deponed that the Defendant received the documents but refused to sign the return copy. It is this affidavit of service that convinced the court the Defendant had been served and went ahead to enter interlocutory judgment in favour of the Plaintiff. 17.The law is clear on what information should be contained in an Affidavit of service. Order 5 Rule 15 prescribes that:-15.Affidavit of service [Order 5, rule 15](1)The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require. 18.The Affidavit of Service filed in respect of service of the summons indicates that the process server received the documents from the Plaintiffs Advocate on 4th April, 2017 He then states that on the material day, he proceeded to Kondoo Center where he was taken by a boda boda rider to the Defendant’s home. 19.He did not however state the exact date when he went to serve the Defendant. It is not discernible from the Affidavit of Service whether it was the same date he received the documents from the Plaintiff’s Advocate, or another date. This date is important because it is the date from which time starts to run for the Defendant to enter appearance and file their defence. Therefore, since the date is not discernible, it is impossible to compute the timeline within which the Defendant ought to have filed a defence. 20.In addition, Order 5 Rule 15 requires that Process server must indicate the name and address of the person (if any) identifying the person served. In this case, the process server only states that the Defendant was identified by a boda boda rider, but does not indicate the name of the said rider. 21.That aside, in the Affidavit of Service, Silas K. Kandie deponed that he received a Plaint dated 29th April, 2017 and Summons dated 30th April, 2017. However, the Plaint herein is dated 29th March, 2017. On the other hand, the Summons to Enter Appearance issued by this court were duly executed on 30th March, 2017. 22.It is unclear how these documents could have been given to him on 4th April, 2017 which is roughly 3 weeks before they were actually prepared. From the dates of the documents served by Silas Kandie, the only logical conclusion is that whatever Plaint and Summons that were served on the Defendant, if at all, they were not with respect to the present suit. 23.Furthermore, the Affidavit of Service is sworn on 27th April, 2017 but is claiming to have been for service of a Plaint dated 29th April, 2017 and Summons dated 30th April, 2017. Evidently, if he is to be believed, as at the date he swore the Affidavit, the documents purported to have been served were not even drawn and/ or issued. This is without a doubt, an impossible undertaking. 24.Having due regard to the above deficiencies in the service of the pleadings and summons to enter appearance in this suit, it is clear to my mind that the purported service of summons and pleadings was at best defective, and at the very worst wanting. In the circumstances, I do not think the Plaintiff can claim that all the procedures were followed in entering the default judgment in this case. 25.What then is the consequence of a default judgment entered on the basis of a defective service of summons and pleadings? It is trite law that a judgment made without service of summons to Enter Appearance is a nullity. The importance of service of summons to enter appearance is to bring to the notice of the Defendant of the fact of the institution of the suit, and to require them to respond to the plaintiff’s claim. In default of compliance with the requirement of service of summons, the default judgment entered becomes an irregular judgment, which must be set aside ex debito justitiae, as a matter of right. 26.The difference between a regular and irregular judgment was confirmed by the Court of Appeal in James Kanyita Nderitu vs Maries Philotas Ghika & Another (2016) eKLR, where it was held:-“… From the onset, it cannot be gainsaid that a distinction has always existed between the default judgment that is regularly entered and one, which is irregularly entered. 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 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 v Shah (supra); Patel v EA Cargo Handling Services Ltd [1975] EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v 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 v 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 v Election Tribunal, Kotch, AIR 1955 SC 664, at 711:“There must be never present to the mind the fact that our rules 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’.” 27.The default judgment entered in this suit was therefore an irregular one, and is one for setting aside, even without the application of the parties. In addition, the court is not mandated in such a case to even consider whether the intended defence raises triable issue, or whether there has been inordinate delay in applying to set aside the irregular judgment. 28.I note however that at paragraph 5 of his Replying Affidavit, the plaintiff asserted that the Defendant did not have a good defence to the suit. I note also that the Defendant has annexed a draft of his intended Defence and Counterclaim. I have taken time to read the draft defence annexed to the Application herein, as against the averments in the plaint. 29.The Defendant reiterates that he entered an exchange arrangement with the Plaintiff’s father where he was to give his land in Salgaa in exchange for the suit property. These are two opposing interests over the suit property, each claiming to be rightly entitled to ownership thereof. The Defendant has further alleged that pursuant to the exchange arrangement, the Plaintiff is holding the land in trust. 30.It is not possible at this stage to know who between the Plaintiff and the Defendant is telling the truth. This issue therefore is one that need to be interrogated through hearing and adduction of evidence. It is therefore my considered view that the Defendant does indeed have a good Defence, which raises triable issues as to ownership of the suit land. 31.In deciding whether the defence raises any triable issue, the court is to bear in mind that a triable issue is not one that must succeed but one that requires further interrogation of the court. A triable issue was defined by the Court of Appeal in the case of Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR as follows:-“A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black's Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial.” It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the court.” 32.As indicated above, the court need not delve into the issue of delay in filing he present application, and will not therefore do so. However, with regards to the issue of irreparable harm on the part of the Plaintiff, it goes without saying that judgment in this suit was delivered on 23rd April, 2020. The Plaintiff claims that he stands to suffer loss if the judgment is not executed as it has been pending for a while now. 33.It is clear that to date, the Plaintiff is yet to execute the default judgment, and has only come to after six years seeking to have it executed. In the meantime, the Defendant has affirmed that he is still the one in possession. There is no tangible reason why the Plaintiff waited that long before executing the judgment. The Plaintiff went to sleep for 6 years on the execution of the judgment, I do not see what loss he stands to suffer now if he is not even on the suit land. 34.Being that the affidavit of service of the summons is defective as explained earlier on in this ruling, and bearing in mind that the Defendants Defence raises triable issues, I do find that he is entitled to the orders sought in the present application. 35.With regards to costs of the present application, even though the Defendant has succeeded, owing to the fact that the matter is set to be re-opened and heard on its merits, I do direct that costs of the application shall be costs in the cause. Orders:- 36.Accordingly, the Defendant’s Notice of Motion Application dated 30th March, 2026 is determined as follows:-a.The judgment dated 23rd April, 2020 and all consequential orders be and is hereby set aside.b.The defendant/applicant be and is hereby allowed to unconditionally defend this suit and the matter be heard and determined on merits and the draft defence annexed herewith be deemed as duly filed and served upon payment of the requisite court fees.c.The costs of this application shall be in the cause. 37.Order accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 14TH DAY OF MAY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the virtual presence of:-Plaintiff present in person.Ms. Koech holding brief for Mr. Kibii for the Defendant/Applicant.Court Assistant - Laban.