Shem Otieno v Damar Ogola Ng’oma & another (Suing as the Personal Representatives of the Estate of Richard Ng’oma Orero (Deceased) [2021] KEELC 2372 (KLR)

The court perused the affidavit of service sworn by David Nyang'au and confirmed the documents were received by the then counsel who affixed his stamp and signature. No medical records or affidavit from the said counsel substantiated the alleged sickness, and no notice of ceasing to act was filed. The argument that a represented party cannot have steps taken without participation therefore failed.

Applying Shah v Mbogo, the discretion to set aside ex parte orders exists to cure accident, inadvertence or excusable mistake, not to reward indolence. The applicant's counsel received service personally, no response was filed, and the applicant only instructed new counsel after the eviction notice. Even on an independent interrogation of the plaint, it disclosed no reasonable cause of action, so setting aside would yield no different outcome.

The claim rested solely on long occupation, which cannot found ownership without lawful acquisition or adverse possession meeting the Munyu Maina threshold. The green card showed title issued to the defendant on 31st October 2008 following a decree in Kisumu CMCC Land Case No. 36 of 2008. The reply's paragraphs 6 and 7 were mere general denials, so the respondent was entitled to summary judgment for recovery of the land.

Although no formal substitution application was before the court, the holders of a Limited Grant of Letters of Administration Ad Litem were on record. Guided by Sections 1A, 1B and 3A of the Civil Procedure Act, Section 3 of the ELC Act and Article 159(2)(d), and following Morjaria v Abdallah and Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama, the court substituted the deceased to avoid a futile determination against a non-existent party.