Nanjala (Suing on Behalf of Joseph Onyango Ogalo) v Okada (Suing on Behalf of John Oduku Balongo) (Enviromental and Land Originating Summons E012 of 2022) [2025] KEELC 5469 (KLR)
The bottom line
#The Busia Environment and Land Court set aside an adverse possession judgment won without proper notice, giving the landowner a chance to defend her case.
What this practically means
#Executive summary
#Key legal issues
#Effect of non-compliance with Order 9 Rule 9 on the Defendant's application filed in person
Non-compliance did not render the Motion incompetent nor prejudice the plaintiff
Guided by Tobias M Wafubwa v Ben Butali and Boniface Kiragu Waweru v James K Mulinge, the court held the failure was procedural not fundamental; where it does not undermine jurisdiction, affect the core of the dispute or cause prejudice leading to miscarriage of justice, Article 159 and the overriding principles permit substantive justice.
Whether the exparte judgment should be set aside
Yes - the Defendant was not personally served with the hearing notice for 25th July 2024 when the case actually proceeded, and she has a triable defence
Though the court found the Defendant had instructed Omeri & Associates (making the judgment regular in that sense), the record showed no service of the hearing notice for the actual hearing date. Further, the replying affidavit raised triable issues - the suit land is now registered in the names of other co-owners - and the judgment is incapable of execution without impleading them. Fairness dictated giving her a hearing.
Whether Omeri & Associates or Obwoge-Onsongo Advocates acted for the Defendant
Omeri & Associates were properly on record; Obwoge-Onsongo were not on record for this suit, though the illiterate Defendant may have mistakenly believed they were acting here too
Omeri & Associates filed a Notice of Appointment and accepted service of the hearing notice under protest without seeking leave to cease acting - unprofessional conduct. The receipts annexed by the Defendant related to other suits, but the possibility that she believed the firm was acting in this suit too weighed in favour of allowing the application.
Legal principles established
#- Non-compliance with Order 9 Rule 9 is procedural, not fundamental, and does not render proceedings a nullity where no prejudice or miscarriage of justice results
- A party should not be condemned unheard; the court retains power to set aside even a regular exparte judgment in the quest for justice
- Once on record, counsel must remain on record or formally apply to cease acting; counsel cannot choose which matters to prosecute
Court orders
#- 1.The judgment dated 17th September 2024 as well as all consequential orders are hereby set aside
- 2.The Defendant's replying affidavit dated 7th February 2025 in response to the Originating Summons together with annexures be deemed as duly filed and served within 14 days of the ruling
- Jurisdiction invoked
- Inherent and case-management powers under Sections 1A, 1B and 3B of the Civil Procedure Act and Orders 10, 11 and 12 of the Civil Procedure Rules, read with Article 159(2)(d) of the Constitution 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nanjala (Suing on Behalf of Joseph Onyango Ogalo) v Okada (Suing on Behalf of John Oduku Balongo) (Enviromental and Land Originating Summons E012 of 2022) [2025] KEELC 5469 (KLR)", Case Analysis (2025). Not stated in the judgment (Busia ELC; adverse possession suit re Bunyala/Mudembi/1773). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5469/eng@2025-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.