John v Fondo (Enviromental and Land Originating Summons 14 of 2023) [2026] KEELC 719 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Regularity of substituted service
Service effected by newspaper advertisement pursuant to a court order was regular; the ex parte judgment obtained after such service was a regular judgment.
The court had on 11 October 2023 directed substituted service by advertisement in the Daily Nation or The Standard. The applicant published the notice in the Daily Nation on 16 October 2023 and filed an affidavit of service. The respondent did not dispute that the substituted service was regular, only that his address was known; because the court had directed substituted service, the judgment stood as regular.
Whether the court retains discretion to set aside a regularly obtained default judgment
Yes; even a regularly obtained judgment may be set aside in the exercise of the court's discretion to avoid injustice.
Relying on Patel v E.A. Cargo Handling Services Ltd, the court held the discretion exists to relieve against injustice or hardship from accident, inadvertence or excusable mistake, though not for a party who deliberately obstructed or delayed the cause of justice. The respondent's failure to respond despite regular service was weighed against the fact that a plausible defense had been raised.
Whether a triable and bona fide defense was established
Yes; the draft defense raised substantial and triable issues including fraudulent entry, illegality of possession, interrupted and non-exclusive occupation, and the absence of hostility under Section 38 of the Limitation of Actions Act.
The draft defense raised issues about the applicant's entry onto the suit property alleging a fraudulent sale, to be substantiated by documentary evidence, and challenged the tenets of adverse possession, citing Samuel Miki Waweru v Jane Njeri Richu that fraudulent or unlawful possession cannot be transformed into adverse possession. Combined with Article 50(1) fair-hearing guarantees, this justified setting aside the judgment.
Legal principles established
#- The discretion to set aside a default judgment is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a party who deliberately obstructs or delays the course of justice
- Where a draft defense raises even one triable issue, the court is compelled to allow the defendant to be heard
- No party should be condemned unheard, and the right to a fair hearing under Article 50(1) supports setting aside a default judgment where a plausible defense is raised
Court orders
#- 1.The ex parte judgment dated 2nd October 2024 is set aside and all consequential orders arising therefrom are vacated
- 2.The respondent is granted leave to file a defense and any necessary pleading within 14 days of the ruling
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; discretionary jurisdiction to set aside default judgment (Civil Procedure Rules and Article 50(1) of the Constitution invoked in the application of that discretion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John v Fondo (Enviromental and Land Originating Summons 14 of 2023) [2026] KEELC 719 (KLR)", Case Analysis (2026). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/719/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.