Sewe v Ogutu (Environment and Land Case E022 of 2022) [2025] KEELC 5380 (KLR)
The bottom line
#A Siaya land court cancelled a default judgment in an adverse possession suit because the property owner was never properly served with court papers.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant was duly served with the Originating Summons and notices
Service was not proved; doubt was cast on the WhatsApp service and there was no personal service as directed
The court examined the affidavits of service and found no disclosure of the last known telephone number and no confirmation from Safaricom that the WhatsApp number belonged to the defendant. The court had earlier directed direct service, and personal service is the preferred mode. Delivery receipts alone, naming 'Michael Agutu', were insufficient. The court concluded there was no service.
Whether the ex parte judgment should be set aside notwithstanding absence of a draft defence
Yes; the affidavit raised triable issues and natural justice requires a party not be condemned unheard
The court held that a draft defence is not mandatory, and looking at the totality of the case, issues concerning the Kisumu ELC proceedings, the same suit property and the plaintiff's claim raised triable issues warranting a full trial. The absence of a draft defence was not fatal.
Whether setting aside would prejudice the plaintiff given the judgment was implemented and title transferred
No; the discretion extends to the consequential decree and its results, including the registration of the plaintiff as proprietor
Order 10 Rule 11 discretion extends to the decree and consequential orders. Logic dictates that setting aside the judgment carries with it its consequences, including the registration. No hardship was foreseen since the plaintiff remains in occupation and the balance of convenience favours the status quo.
Legal principles established
#- An irregular default judgment entered against a defendant not served or properly served must be set aside ex debito justitiae, as a matter of right
- Even a regular judgment may be set aside where the justice of the case demands and the defendant demonstrates a good defence
- Summons may be served by mobile-enabled messaging applications to the defendant's last known and used telephone number, proved by a delivery receipt
- A good defence need not be one that must succeed; a bona fide triable issue is any matter requiring further interrogation at a full trial
Court orders
#- 1.The ex parte judgement delivered on 19/09/2024, the decree and all consequential orders set aside
- 2.Leave granted to the defendant to file and serve his defence and response to the Amended Originating Summons, witness statements and documents within 14 days
- 3.Plaintiff may respond further within 14 days of service
- 4.Plaintiff to remain in occupation of the suit property LR North Ugenya/Sega/350 and status quo maintained pending hearing and determination of the suit on merits; defendant not to interfere
- 5.No further registration of dealings by the land registrar against the suit property pending further orders
- 6.Setting aside of the judgment shall not take away any defence a party may have
- 7.Costs of the application to abide the outcome of the suit
- 8.Leave to appeal granted if required
- Jurisdiction invoked
- Sections 80, 3, 3A and 20 of the Civil Procedure Act; Section 19(2) of the Environment and Land Court Act; Order 9 Rule 9, Order 12 Rule 7, Order 22 Rule 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sewe v Ogutu (Environment and Land Case E022 of 2022) [2025] KEELC 5380 (KLR)", Case Analysis (2025). ELC E023 of 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5380/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.