https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4937

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC CASE NO. E019 OF 2022** TAKAUNGU INVESTMENTS COMPANY LIMITED ………………PLAINTIFF VERSUS FAROUK HAMID KHAMIS………………………………………1ST DEFENDANT THE LAND REGISTRAR LAMU COUNTY…………………………………………………....2ND DEFENDANT DIRECTOR OF SURVEY………………………………………….3RD DEFENDANT **RULING** 1. The Defendants filed a Notice of Motion dated 9th March 2025 seeking the following prayers: 2. ***Spent*** 3. ***That the orders and decree emanating from the judgment delivered on 26th February 2025 directing the Lamu Land Registrar to cancel and /or extinguish the 1st Defendant’s Title Number LAMU/MANDA ISLAND/232 to remove any overlap with MANDA ISLAND/47 and 48 and the order directing the 3rd Defendant to expunge all the records relating to the file number LAMU/MANDA ISLAND/232 be stayed pending the hearing of this application inter partes and thereafter, until its determination.*** 4. ***The consent recorded between the Plaintiff and the 2nd Defendant on 8th December 2022 and consequently issued as an order of the court on 13th December 2022 be wholly set aside.*** 5. ***The judgment, orders and Decree emanating from the judgment of this court given on 26th February 2025 together with all consequential orders actions and steps taken as a result therefrom all be set aside.*** 6. ***Consequent upon the orders sought in (c) and (d) above, the Applicant be allowed to file his Defence as shown in the draft defiance hereto, and this suit be heard afresh to enable the Applicants to fully participate in the hearing of the same.*** 7. The application is based on the grounds set out on the face of the Notice of Motion and the supporting affidavit of Farouk Hamind Khamis (1st Defendant) sworn on even date. 8. In the said affidavit he deposes that he is the director of a logistics company in Mombasa known as Portside Freight Terminals and that he is the registered owner of the property known a s LAMU ISLAND/232. 9. It is his deposition that he only came to learn of that judgment in the instant suit in the month of January 2026 as he was previously not aware that the suit was in court. 10. He subsequently learnt that after the suit was filed, the Plaintiff obtained an order to serve him by substituted service. 11. He refers to paragraphs 11-16 of the grounds in the notice of Motion where he faults the process server who was tasked with the assignment to serve him with Summons to enter Appearance for failing to exercise due diligence. This is because the said Process server stated that he posted the Applicant’s name in the Process Servers’ Group email and WhatsApp group but failed to get a response 12. He is of the view that the Process Server’s averments in his Affidavit of Service demonstrate that the Plaintiff did not satisfy the conditions in Order 5 Rule 14 and 17 of the Civil Procedure Rules which require an applicant to satisfy the court that he has exercised due diligence before he can be granted an order to serve the Respondent by way of substituted service. 13. He alludes to the shortcomings of the Advertisement through which he was served as highlighted in grounds 23, 24 and 25 of the Grounds in support of the application. 14. In particular he points out the advertisement was placed under the “Classified Advertisements/Transitions. It was also placed under “Personal Services” and the print was barely legible. In his opinion, it is not the intention of the court that an advertisement relating to the property rights of an individual should be framed in such a cursory manner as was done by the plaintiff. 15. He adds that on 6th November 2023, the Plaintiff filed an additional List of Documents together with an Amended Plaint. Among the additional documents is a certified copy of the Green card for parcel number LAMU/MANDA ISLAND /232 which at entry no. 3 shows that on 27.9.21 one Anne Sophie Zebensiki Lemartin registered a caution dated 26.8.21 claiming to have a purchaser’s interest. The said Anne Sophie Zebensiki Lemartin is described as a Director of the Plaintiff Company. 16. He avers that if the Plaintiff ‘s Director was desirous of purchasing the suit property from him, she must have been aware that the Applicant was a director of Portside Freight Terminals, Mombasa and she therefore knew where he could be found. He therefore finds it inconceivable that the Process Server was unable to trace him for purposes of serving him with Summons. 17. He blames the Plaintiff for the lapses which resulted in him not being served with Summons to enter appearance. 18. It is his contention that he has good Defence to the claim against him as demonstrated in the Draft Defence annexed to his affidavit. 19. He denies that the suit property and parcels number MANDA ISLAND/47 and 48 overlap and states that this is not borne out by the Registry Index Map from the Director of Surveys which shows that the two properties are 1.4km from each other. 20. He adds that the fact that the Plaintiff’s Director wanted to purchase the suit property dispels all notions that it overlaps the Plaintiff’s property. He concludes by praying that the application be allowed. 21. The application was canvassed by way of written submissions which were orally highlighted by the parties’ counsel on 9th July 2026. **ANALYSIS AND DETERMINATION** 1. Under Order 12 Rule 7 of the Civil Procedure Rules the court has wide discretion to set aside an ex-parte judgment on such terms as the court may deem jus. The discretion is supposed to be exercised to avoid injustice and 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 course of justice. See **Shah v Mbogo & Another (1967) E.A 116.** What is clear is that such discretion must be exercised judiciously. 2. In the instant case, the Applicant does not deny that he was served by way of substituted service. His contention is that he never saw the advertisement as it was placed in the Classified Advertisement/Transition age of the Daily Nation which is by no means prominent. 3. The court takes judicial Notice that people rarely read the Classified Advertisement page of the newspaper unless they have a specific reason to do so. In any event in the current digital age, most people only read the digital newspaper which does not contain the Classified Advertisements. 4. The Applicant has taken issue with the fact that the decision to grant the application to serve him by substituted service was erroneous, the same having been arrived at through a consent entered between the Plaintiff and the 2nd defendant. 5. It is not in dispute that an application for leave to serve by substituted service is supposed to be ex-parte. The consent entered on the said application was therefore unnecessary. This fact was conceded by counsel for the 2nd Respondent in his oral submissions. 6. The Applicant has also argued that he was not aware of the suit and he only came to learn of it long after judgment had been entered against him in January 2026. He was then unable to access the file immediately as it was still with Hon. Justice Makori who had been transferred from Malindi. He only managed to peruse the file and file his application n March 2026. Based on that explanation, the delay is not inordinate. 7. The other ground upon which the application is based is that the Applicant has a good Defence. This has been set out in his grounds in support of the application as well as the Supporting affidavit. I have also perused the draft Defence annexed to the supporting affidavit and I am satisfied that the Defence raises trial issues. 8. Of particular importance is the assertion that there is a survey report from the Director of Survey that states the Applicant’s parcel of land and the plaintiff’s land do not overlap as they are 1.4km apart. It would be important for this evidence to be tested in cross-examination before the court arrives at a final decision. 9. Lastly, the Applicant’s averment regarding the caution placed by the Plaintiff’s director on his title as one who had a purchaser’s interest cannot be taken lightly. 10. The right to be heard is a valued right which is enshrined in Articles 48 and 50 of the Constitution of Kenya. The Applicant was not been given an opportunity to be heard as the service which was done through substituted service, though lawful has been found to be wanting. 11. The Applicant’s property rights cannot be arbitrarily taken away without him being given an opportunity to ventilate his case. 12. Indeed, the right to a fair hearing is one of the cardinal rules of natural justice and remains at the heart of every judicial determination. In the case of **M.K v M.W & Another (2015) eKLR** the court observed that: ***“The courts of his land have been consistent in observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.”*** 1. In **Gerita Nasipondi Bukunya & 2 Others v Attorney General (2019) eKLR** the court held that: “***There must be ever present to the mind the fact that our laws 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 be precluded from participating in them.”*** And in **Mbaki and others v Macharia & Another (2005) 2 EA 206 at Page 210** the Court stated that: **“*The right to be heard is a valued right, it would offend all notions of justice if the right of a party were to be prejudiced without the party being afforded an opportunity to be heard”*** 1. In the case of **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another (2016) eKLR,** the Court of Appeal held as follows: “*The former Court of Appeal for Eastern Africa in* ***Ali Bin Khamis v Salim Bin Khamis Kirobe and Others (1956) 1 EA195*** *expressed the view that where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debito justiciae from setting aside such order. Briggs J.A with whom Worley P and Sinclair VP concurred stated thus.* *On the appeal before us, Mr. Khanna relied on Craig v Kanseen (1943) 1 All ER 108 as showing that where an order is improperly made, without serving a person known to be affected by it and having a statutory right to be served before it can be made, the order is a nullity in the sense that it must be set aside ex debito justiciae and that in cases of nullity procedure is unimportant, since the court has inherent jurisdiction to set aside its own orders. I accept these principles as laid down by Lord Greene MR.* 1. Based on the principles laid down in the above -mentioned authorities and the explanation provided by the Applicant I am persuaded that the application has merit. 2. Accordingly, I grant the application dated 9th March 2026 and make the following orders: 3. *The orders and decree emanating from the judgment delivered on 26th February 2025 directing the Lamu Land Registrar to cancel and /or extinguish the 1st Defendant’s Title Number LAMU/MANDA ISLAND/232 to remove any overlap with MANDA ISLAND/47 and 48 and the order directing the 3rd Defendant to expunge all the records relating to the file number LAMU/MANDA ISLAND/232 be and are hereby stayed pending the hearing of the main suit.* 4. *The consent recorded between the Plaintiff and the 2nd Defendant on 8th December 2022 and consequently issued as an order of the court on 13th December 2022 is hereby set aside.* 5. *The judgment, orders and Decree emanating from the judgment of this court given on 26th February 2025 together with all consequential orders actions and steps taken as a result therefrom are hereby set aside.* 6. *The Applicant is granted leave to file his Defence as shown in the draft defiance hereto so that the suit can heard afresh to enable the Applicants to fully participate in the haring of the same.* 7. *The Applicant shall bear the costs of this application.* **Dated, signed and delivered virtually at Malindi this 15th day of July 2026.** **J. M. ONYANGO** **JUDGE** **In the presence of:** **Mr. Paul Buti for the Defendant/Appellant** **Mr. Rao for the Plaintiff/Respondent** **Court Assistant: Happy**