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ELCAllowedKisumu CMC ELC Case No. 384 of 2018 (Appeal)

Bugi (Suing as the Administrator or the Estate of Maurice Onyango Bugi) v Ochang (Suing as the Legal Representative of the Estate of Patrick Onyango Ochang) (Environment and Land Appeal E101 of 2024) [2025] KEELC 8475 (KLR)

Environment and Land Court
27 November 2025
3,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a default land judgment, confirming that a valid defence earns parties a hearing despite late arrival.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against a ruling of the trial court dated 3rd December 2024 dismissing the Appellant's application to set aside an ex parte judgment of 14th October 2020 in Kisumu CMC ELC Case No. 384 of 2018, a land claim over Kisumu/Konya/3017 in which the Respondent alleged fraudulent sub-division and obtained a declaration, rectification and permanent injunction after substituted service by newspaper advertisement. The 2nd Defendant, Maurice Bugi Onyango, died on 9th February 2024 and the Appellant, his administrator, applied on 3rd July 2024 to set aside the judgment, tendering a draft defence. The trial court found the Appellant indolent and dismissed the application. E. Asati J, applying Selle v Associated Motor Boat Company as a first appeal, held that substituted service had been properly effected in compliance with an unappealed court order, by virtue of Order 5 Rule 17 of the Civil Procedure Rules, but that the draft defence raised triable issues which the trial court failed to consider. Allowing the appeal, the court set aside both the ruling and the judgment and proceedings in the lower court, directed that the draft defence be deemed filed upon payment of court fees, awarded thrown away costs of Kshs 20,000/= to the Respondent, and ordered each party to bear their own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether or not the trial court erred in dismissing the application dated 3rd July, 2024
  2. 2.whether or not the appeal has merit
  3. 3.costs of the application

Key legal issues

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01

Validity of substituted service on the 2nd Defendant

Holding

Service was properly effected by substituted service in compliance with a court order of 10th May 2019, and under Order 5 Rule 17 it is as effectual as personal service; the order allowing substituted service was not on appeal.

Reasoning

The court traced the summons dated 20th July 2018, the order of 10th May 2019 permitting substituted service by newspaper advertisement, and the affidavit of service sworn by Francis R. Olel Advocate attaching the Standard Newspaper of 28th May 2019. Since service complied with the court order and the order itself was unchallenged, the trial court did not err in finding the Appellant properly served.

p. 6
02

Whether the draft defence raised triable issues justifying setting aside

Holding

The draft defence raised triable issues and the Appellant should have been heard; the trial court erred in failing to address the defence and in dismissing the application.

Reasoning

The draft defence questioned the Tribunal decision adopted in Kisumu CMC Land Case No. 83 of 2011 and the size of the land awarded. The court held the trial court never considered whether the applicant had a good defence raising triable issues, which is one of the three grounds for setting aside an ex parte judgment. Given that finding, and weighing the delay and proper service, the appeal was allowed but with thrown away costs to the respondent.

p. 6
03

Standard of interference with a first appeal

Holding

As a first appeal, the court re-evaluates the evidence afresh, per Selle & Another v Associated Motor Boat Company Ltd.

Reasoning

Relying on Selle, the court held it was not bound by the trial court's findings of fact and must reconsider and evaluate the evidence itself while making allowance for not having seen or heard the witnesses. This framed the appellate standard applied throughout the determination.

p. 5

Legal principles established

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  • Substituted service effected under an order of the court is as effectual as personal service.
  • On a first appeal the court re-analyses and reconsiders the evidence and draws its own conclusions.
  • A party seeking to set aside an ex parte judgment must explain non-participation, show a defence raising triable issues, and show no prejudice to the respondent.

Court orders

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  1. 1.The ruling of the trial court dated 3rd December 2024 is set aside
  2. 2.The judgement and the proceedings in the lower court are set aside
  3. 3.The draft defence annexed to the application to be deemed duly filed upon payment of the requisite court fees
  4. 4.Thrown away costs of Kshs 20,000/= awarded to the respondent
  5. 5.Each party to bear own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Kisumu (CMC ELC)
Kisumu CMC ELC Case No. 384 of 2018
Jurisdiction invoked
First appeal from the magistrates' court on the ELC's appellate jurisdiction

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. the ruling of the trial court dated 3rd December 2024 is hereby set aside. b. the judgement and the proceedings in the lower court are hereby set aside.
p. 7Final orders - appeal allowed, ruling and ex parte judgment set aside
d. thrown away costs of Kshs 20, 000/= are awarded to the respondent. e. Each party to bear own costs of the appeal.
p. 7Costs orders
Order 5 Rule 17 Civil Procedure Rules provides that substituted service under an order of the court shall be as effectual as if it had been made on the Defendant personally.
p. 6Effect of substituted service under court order
I find that the draft defence raised triable issues for which the Appellant should have been given opportunity to be heard.
p. 6Triable issues and fair hearing
Having found that the applicant has a good defence that raises triable issues and taking into account all the facts of the case, I find that the trial court erred in ultimately dismissing the application.
p. 7Errors in the trial court's exercise of 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, "Bugi (Suing as the Administrator or the Estate of Maurice Onyango Bugi) v Ochang (Suing as the Legal Representative of the Estate of Patrick Onyango Ochang) (Environment and Land Appeal E101 of 2024) [2025] KEELC 8475 (KLR)", Case Analysis (2025). Kisumu CMC ELC Case No. 384 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8475/eng@2025-11-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.