REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC CASE NO. 143 OF 2016
SIMON OKUMU OKINDA ……………..…………….. 1ST PLAINTIFF
JANE NAMENGE OKUMU ……………….………….. 2ND PLAINTIFF
= VERSUS =
JONATHAN ROVI KOFIA ….………… DEFENDANT/APPLICANT
R U L I N G
1. Before this Honourable Court for determination is a Notice of Motion dated 12th November 2025 filed by the Defendant herein. The Defendant/Applicant is seeking the following orders:
a) Spent
b) Spent
c) That stay of execution of the judgment of this Honourable Court entered on 21st April 2022 and all consequential orders be and is hereby granted pending the hearing and/or final determination of this application.
d) That the judgment of this Honourable Court entered on 21st April 2022, together with all consequential orders, be and are hereby set aside.
e) That the Defendant be and is hereby granted leave to enter appearance and file defence out of time
f) That costs of this application be provided for.
2. The application is supported by the affidavit sworn by Jonathan Rovi Kofia, the Applicant/Defendant herein on 12th November 2025. The Applicant deponed that he was never served with the summons or pleadings in this matter and only became aware of the suit after being served with a proclamation notice from Eshikhoni Auctioneers.
3. That the claim is for a boundary dispute between his parcel of land Bukhayo/Kisoko/6545 and the plaintiff's parcel number Bukhayo/Kisoko/1774, which he had previously referred to the Busia County Land Registrar in October 2015.
4. He was never notified of any site visit by the County Surveyor nor summoned to participate in the preparation for the survey report dated 25th April 2019.
5. That the affidavits of service filed by one Musachi Richard are false and misleading, as he was never served and does not know the said process server.
6. That he has prepared a statement of defence raising jurisdictional and factual issues, including the statutory requirements that the Land Registrar resolve boundary disputes. That he has been condemned unheard and the judgment entered is irregular, unjust and prejudicial.
7. He urged this Honourable Court to set aside the judgment and allow him to defend the suit on the merits.
8. The applicant filed his written submissions dated 23rd March 2026, where he raised three (3) issues for determination: a) Whether the Defendant/Applicant was properly served with summons and Plaint; b) Whether the court should exercise its discretion to set aside the ex parte judgment; and c) Whether the court has jurisdiction to determine the boundary dispute.
ANALYSIS AND DETERMINATION:
9. I have considered the Notice of Motion dated 12th November 2025, the affidavits therein, the submissions and the issues that arise for determination before this Honourable Court are:
a) Whether the Defendant/Applicant has established sufficient grounds to warrant the setting aside of the ex parte judgment delivered on 21st April 2022.
b) Whether the Defendant/Applicant should be granted leave to enter appearance and file a defence out of time.
c) Whether the Applicant is entitled to an order of stay of execution of the judgment and all consequential orders.
a) On whether the Defendant/Applicant has established sufficient grounds to warrant the setting aside of the ex parte judgment delivered on 21st April 2022.
10. The power to set aside an ex parte judgment is provided under Order 10 Rule 11 of the Civil Procedure Act, which provides that:
“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.”
11. In the case of Centre Park Plaza Limited -v- Rural Housing Estate Limited [2024] KEELC 13582 (KLR), the court stated that:
“It is not in doubt that the decision whether or not to set aside ex parte judgement is discretionary. It is also trite that this discretion is to be exercised cautiously, to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error. The Court of Appeal in James Kanyita Nderitu vs Maries Philotas Ghika & Another [2016] eKLR, set out the considerations in an application for setting aside an exparte judgment, holding that: “… 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 such party is likely to suffer”
12. The Applicant/Defendant has maintained that he was never served with summons to enter appearance and only became aware of these proceedings upon being served with a proclamation notice during execution. He has challenged the affidavit of service on record as being false and misleading.
13. I have carefully examined the affidavit of service relied upon by the Plaintiff. Although the process server depones that he personally served the Defendant, the affidavit further states that the Defendant declined to sign the service copy. No explanation is given as to whether there was any independent person present to witness the alleged refusal to sign, nor is there any other material placed before the court capable of corroborating that assertion.
14. Ordinarily, an affidavit of service constitutes prima facie evidence of service. However, where service is seriously disputed and the affidavit itself leaves room for doubt, the court must exercise caution before shutting out a litigant from the seat of justice. In the present case, the alleged refusal by the Defendant to acknowledge service remains an assertion by the process server which cannot now be independently verified.
15. The consequence of declining the present application would be to uphold a judgment determining proprietary rights over land without affording the Defendant an opportunity to be heard. Land occupies a unique place in our constitutional and legal framework. It is not merely an economic commodity but a resource of immense social, cultural and economic significance. For that reason, courts have consistently leaned towards determining disputes relating to land on their substantive merits rather than on procedural defaults, provided no irremediable prejudice is occasioned to the opposite party.
16. The Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) provided that:
“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 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 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.”
17. In the circumstances, I am satisfied that this is an appropriate case for the exercise of the Court's discretion in favour of the Applicant to set aside the judgment of this Honourable Court entered on 21st April 2022 together with all the consequential orders thereon.
b) On whether the Defendant/Applicant should be granted leave to enter appearance and file a defence out of time.
18. The grant of leave to enter appearance and file a defence out of time is a discretionary remedy vested in the court under Order 10 Rule 11 of the Civil Procedure Rules, which empowers the court to set aside or vary a default judgment upon such terms as are just. The discretion is unfettered but must be exercised judicially, with the overarching objective of doing substantive justice between the parties.
19. The Court of Appeal further elaborated the applicable principles in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR, where it held that where a regular judgment has been entered, the court retains an unfettered discretion to set it aside after considering factors such as the reason for the failure to enter appearance or file a defence, the length of delay, the prejudice likely to be occasioned to each party, and whether the proposed defence raises triable issues.
20. In the present case, the Applicant maintains that he was unaware of the proceedings until he was served with a proclamation notice during execution. Although this Court has already considered the question of service, the Applicant's explanation cannot be dismissed outright as a deliberate attempt to obstruct the course of justice. The application was made promptly upon the Applicant becoming aware of the existence of the decree, and there is no material before the Court demonstrating that he intentionally sought to evade the judicial process.
21. The Applicant has also annexed a draft statement of defence. While this Court must refrain from making definitive findings on the merits of that defence at this interlocutory stage, it is evident that the proposed defence raises bona fide triable issues.
22. This Court is also alive to the nature of the dispute before it. The suit concerns rights and interests over land, a subject which has consistently been recognized by the courts as emotive and deserving of determination on substantive merits wherever practicable. Denying the Applicant an opportunity to defend the claim would effectively determine his proprietary rights without affording him a hearing, notwithstanding the existence of an arguable defence.
23. In balancing the competing interests of the parties and bearing in mind the overriding objective under sections 1A and 1B of the Civil Procedure Act, I am persuaded that the interests of justice would be better served by granting the Applicant leave to enter appearance and file his defence out of time so that the dispute may be determined on its merits after all parties have been heard.
c) On whether the Applicant is entitled to an order of stay of execution of the judgment and all consequential orders.
24. The Applicant also seeks an order staying the execution of the judgment delivered on 21st April 2022 together with all consequential orders pending the hearing and determination of the present application. The rationale behind an order of stay of execution is to preserve the subject matter of the dispute and prevent the successful party from executing a decree in circumstances that may render the proceedings nugatory or occasion irreparable prejudice to the applicant.
25. The principles governing the grant of stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules, which requires an applicant to demonstrate that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that such security as the court may order has been furnished for the due performance of the decree.
26. In the circumstances, I am satisfied that the interests of justice demand that execution of the judgment delivered on 21st April 2022, together with all consequential orders, be stayed. Such an order will preserve the subject matter of the dispute and ensure that the parties proceed to a hearing on a level playing field without the risk of the suit being overtaken by events.
27. The upshot is that the Applications herein succeed and I make the following orders:
a) A stay of execution of the judgment and decree of this Court delivered on 21st April 2022, together with all consequential orders, is hereby granted pending the hearing and final determination of this suit.
b) The Judgment of this Court delivered on 21st April 2022, together with all consequential orders arising therefrom, is hereby set aside.
c) The Defendant/Applicant is hereby granted leave to enter appearance and file his Statement of Defence within fourteen (14) days from the date of this ruling.
d) The Plaintiff shall be at liberty to file and serve a Reply to Defence, if any, within 14 days upon service of the Defence.
e) Costs of the Notice of Motion shall be in the cause.
Ruling dated, signed and delivered in open Court on this 23rd day of July 2026.
C. MUGAMBI
JUDGE
23RD JULY 2026
| BUSIA ELC NO. 143 OF 2016 – RULING Page 1 of 46 |