https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4204

Too v Tongol (Enviromental and Land Originating Summons E016 of 2025) [2026] KEELC 4204 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4204 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Enviromental and Land Originating Summons E016 of 2025 GMA Ongondo, J July 2, 2026 Between Samuel Kipkemboi Too Plaintiff and Kiplagat Arap Tongol Defendant Ruling 1.The instant ruling is in respect of the application by way of a Notice of motion dated 28th April 2026 by the applicant/plaintiff, Samuel Kipkemboi Too through Cheruiyot Melly and Associates Advocates expressed to be brought under, inter alia, sections 1A and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya for the following orders;a.That the Honourable court be pleased to issue an order that the application in this cause are in order and the Honourable court do issue directions that the matter do proceed as undefended cause.b.That this Honourable Court be pleased to make such further orders as are just in the circumstances of this case.c.That the costs of this Application be provided for.d.Such other, further, additional, alternative and/or incidental orders as the Honourable Court may deem appropriate, just and expedient. 2.The application is premised upon the grounds which include; That the Plaintiff filed an Originating Summons application before the Honourable Court on the 13th October 2025.That the Defendant herein was duly served with the said Originating Summons and Summons to enter appearance on the 3rd Day of December 2025.That despite having been duly served with the above-mentioned Court documents the Defendant has neither entered appearance nor filed a response to the application within the statutorily stipulated timeframe. 3.Further, the application is founded on the applicant’s supporting affidavit of nine paragraphs of even date and he averred in part, that he had instructed his advocates on record to file an Originating Summons before the Honourable Court and they did so on the 13th day of October 2025. That the Respondent/Defendant herein was duly served with the said Originating Summons and Summons to enter Appearance on the 3rd day of December 2025 as per the affidavit of service sworn on 17th December 2025 (SKT-1) and another affidavit of service sworn on 13th April 2026 annexed to the affidavit in support of the application. 4.It must be borne in mind that service of a party in a matter is a vital constitutional threshold rooted in the right to fair hearing under Article 50 (1) of the Constitution of Kenya 2010. 5.So, upon examination of the record in entirety, I am satisfied that the respondent was properly served as revealed in affidavits of service as per paragraph 3 hereinabove. However, he failed to either enter appearance or file any response to the said Summons as well as this application. 6.It is trite law that the main concern of the court is to do justice; see Patel vs E A Cargo Handling Services Ltd (1974) EA 75. 7.In this matter, the respondent failed to defend the proceedings inclusive of the Originating Summons and the present application without any reasonable explanation. Therefore, this Honourable court has to proceed with it as undefended to do justice herein. 8.Accordingly, the application dated 28th April 2026 is steadfast and meritorious and the same is hereby allowed in terms of order number 1 sought therein as stated in paragraph 1 (a) hereinabove with costs in the cause. 9.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 2ND DAY OF JULY 2026.HON. G M A ONGONDOJUDGEIn the presence of;Mr. Sang instructed by Mr. Serem learned counsel for the applicant/plaintiffMr. Walter Kipkorir, court assistant