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ELCPartially AllowedNot stated in the judgment provided· [2026] KEELC 719 (KLR)

John v Fondo (Enviromental and Land Originating Summons 14 of 2023) [2026] KEELC 719 (KLR)

Environment and Land Court
5 February 2026
1,350 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 22nd July 2025 in which the respondent, A.S Fondo, registered proprietor of Parcel Tana River/Witu/62, sought to set aside, vacate and/or review an ex parte judgment delivered on 2nd October 2024 and leave to file a defense. The underlying Originating Summons dated 23rd June 2023 was filed by the applicant seeking to be registered as proprietor of the parcel by adverse possession. After the court allowed substituted service by advertisement in the Daily Nation on 16th October 2023, the respondent entered no appearance and filed no defense; formal proof was heard and judgment entered for the applicant. The respondent argued that substituted service was irregular because his postal address and residence were publicly known and the ex parte application lacked full disclosure, and that his draft defense raised triable issues including fraudulent entry, illegality of possession, interrupted and non-exclusive occupation, and lack of hostility under Section 38 of the Limitation of Actions Act. The applicant countered that service was effected strictly as directed, an affidavit of service was filed, and the respondent did not dispute its regularity. The court framed four issues: whether the ex parte judgment should be annulled, whether a triable and bona fide defense existed, whether service was correct, and costs. Holding the substituted service regular, the court nonetheless found that a plausible defense had been raised and, guided by Article 50(1) of the Constitution and the principle that no party should be condemned unheard, exercised its discretion to set aside the default judgment. The ex parte judgment and all consequential orders were vacated, the respondent was granted 14 days to file a defense, and costs were made costs in the cause.

Key legal issues

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01

Regularity of substituted service

Holding

Service effected by newspaper advertisement pursuant to a court order was regular; the ex parte judgment obtained after such service was a regular judgment.

Reasoning

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.

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02

Whether the court retains discretion to set aside a regularly obtained default judgment

Holding

Yes; even a regularly obtained judgment may be set aside in the exercise of the court's discretion to avoid injustice.

Reasoning

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.

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03

Whether a triable and bona fide defense was established

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The ex parte judgment dated 2nd October 2024 is set aside and all consequential orders arising therefrom are vacated
  2. 2.The respondent is granted leave to file a defense and any necessary pleading within 14 days of the ruling
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Limitation of Actions ActSection 38
  • Civil Procedure RulesGeneral (procedures and consequences for non-compliance)

Cases cited (4)

  • Tree Shade Motor Ltd v D.T. Dobie & Another
    [1995-1998] 1 EA 324
  • Samuel Miki Waweru v. Jane Njeri Richu
    [2007] eKLR
  • Patel v E.A. Cargo Handling Services Ltd
    [1974] EA 75
  • Mbaki & Others v Macharia & Another
    [2005] 2 EA 206
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.