https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3756

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCA CASE NO E028 OF 2025** ***(formerly Nyahururu ELCA No. E012 of 2024)*** **CYRUS GAITA NDIRANGU...............................................APPELLANT.** **VERSUS** **JOHN MWANGI NDIRANGU............................................RESPONDENT.** **JUDGMENT:** The Respondent sued the Appellant vide a Plaint dated 13/8/2021 for: - 1. A declaration that L. R No. NYANDARUA/PESI/364 is registered in the names of the Plaintiff (Respondent) and one Paul Ndirangu Karugu jointly and the 1st Defendant (Appellant) has no proprietory interest thereon whatsoever. 2. An order directing the 2nd Defendant to delete the name of Paul Ndirangu Karugu from the Register of Title No. L.R No. NYANDARUA/PESI/364 and register the death Certificate of the said Paul Ndirangu Karugu. 3. An order directing the 2nd Defendant to issue the Respondent with a Title Deed of L.R No. L.R No. NYANDARUA/PESI/364 as the sole proprietor. 4. An order requiring the Appellant together with his family to vacate L. R No. NYANDARUA/PESI/364 immediately failing which they be evicted at their own costs. 5. An order of permanent injunction be issued restraining the Appellant, his family, servants and agents restraining them from entering, remaining, occupying, cultivating, developing or in any other way interfering with L.R No. NYANDARUA/ PESI/364. 6. Costs of the suit. 7. Any further or other relief this Court may deem just to grant. The Respondent averred that on or about 26/9/2001, the Respondent was registered as a joint proprietor of all that parcel of land known as L.R. No. NYANDARUA/PESI/364 together with Paul Ndirangu Karugu after he paid the entire purchase price from the previous owner – John Theuri Mutune and upon registration the 2nd Defendant issued them with a joint Title Deed on 26/9/2001. John Ndirangu Karugu later died on 5/12/2011 and that therefore a new Title Deed ought to be issued to the Respondent. He further avers that he allowed the Appellant to temporarily occupy the suit parcel of land but that in 2015, the Appellant started claiming that he was entitled to a portion thereof and even brought a Surveyor to excise that portion. At that point, the Respondent withdrew the Appellant’s license to live on the suit land. He averred that after the death of Paul Ndirangu Karugu, he ought to be registered the sole proprietor of L.R. No. NYANDARUA/PESI/364. Upon entering appearance, the Appellant filed a Defence dated 25/8/2021 and denied the substantive contents of the Plaint save the descriptive parts thereof. He further stated that he had been in occupation of the suit land L.R. No. NYANDARUA/PESI/364 since the lifetime of his Deceased father (whom he did not name but in his witness Statement he named him as Paul Ndirangu Karugu) with the express knowledge and understanding of the Respondent. ### On 13/9/2021 the Respondent requested for Interlocutory Judgment for failure to enter appearance and file Defence against the 2nd Defendant, the Land Registrar, Nyandarua. The same was granted on 8/10/2021 when the matter came up for hearing. The Court granted the Appellant time to patch up his case by way of filing Witness Statements and accompanying Documents in compliance with **Order 3,** Rule **2** of the Civil Procedure Rules. The Appellant never complied with this and on 22/2/2022 the Appellant filed an Application to be allowed to comply, which was granted and the Appellant had an extension of 30 days to so comply which he still did not. This was on 1/12/2021 and when the matter came up for mention on 12/1/2022 the Court ordered for the case to proceed by way of formal proof on 15/2/2022. On 15/2/2022, as earlier on directed the Court proceeded with the hearing of the case by way of formal Proof. The Respondent gave sworn evidence to the effect that he resided on the suit premises and that the Appellant was his brother. He referred to his witness Statement dated 13/8/2021. He said that in 1995, his later father, Paul Ndirangu and himself bought a piece of land L.R. No. NYANDARUA/PESI/364 measuring about 3.56 Hectares from one John Theuri Mutune. He singlehandedly paid the full purchase price. The 2 were then registered as joint owners and a Title Deed issued in their joint names. He therefore ought to be registered the sole Title holder and absolute proprietor. He said that “they forcefully took away my Title Deed”. At this stage, he decided that the Appellant and his family vacate the suit land and he therefore prayed for a Declaration that the suit had devolves to him based on the law of survivorship *(jus acrescendi)*. He relied on the following documents to support his case: - And the entire case was closed. Before Judgment was delivered and after submissions by the Respondent were filed on 21/2/2022, the Appellant filed an Application dated 22/2//2022. The Honourable Trial Magistrate S.N. Mwangi reserved the Ruling on the Application to be delivered on Notice since she was on transfer. In the aforesaid Application, the Appellant urged the Court to: - 1. Vacate and set aside its ex parte orders made on 15/2/2022, of proceeding with the case by way of formal proof. 2. To re-instate the Appellant’s case and admit his list of documents and the Appellant’s list of witnesses and statements out of time. 3. set down the suit for inter parties Hearing. 4. Costs be in the cause. He gave his grounds as that the Court proceeded to hear the case ex-parte by way of formal proof and proceeded to strike out his Defence for failure to comply with Order 11 of the Civil Procedure Rules on 10/11/2022. The Court allowed the Appellant to file the witness statements and documents within 30 days in default of which the Court would proceed to deliver its Judgment. The Proceedings are incomplete and they do not show who was present in Court and particularly whether the Appellant was present in Court or not. Judgment was delivered virtually in the presence of Mr. Kaburu for the Respondent on 20/7/2023 and there is nothing to show that the Appellant was present in Court. The same was crystallized into a Decree to the effect that: Subsequently, an eviction order was issued on 9/4/2024 to avert this, the Appellant made an Application dated 19/4/2024 to stay execution of the Decree issued on 20/7/2023, eviction order on 9/4/2024 and any subsequent orders therefrom and allow the re-opening of the case and that the Appellant be granted unconditional leave to file his Defence and/or pleadings out of time and defend the suit. The grounds upon which the Application was made were that: - * There is no evidence that the Appellant was served with the Ruling Notice and that time had been extended for him to file witness statements and list and bundle of documents. * That he had not been served with the requisite eviction Notice. In the Replying Affidavit sworn on 30/4/2024, John Mwangi Ndirangu, the Respondent rejoined by diposing that the Appellant knew or ought to have known when the Ruling was being delivered by the Court because it was his responsibility to pursue the outcome or result of his Application which he had brought under a certificate of urgency. He further depones that the Ruling date was communicated to “my Advocate by the Court and it is clear from the proceedings that the same Court communicated the same to the 1st Defendant. Further, execution of the Decree has been effected and that the Application is res judicata in view of an earlier Application and that the Application is bad in law, has no merit, is scandalous, frivolous, and otherwise an abuse of the process of the Court and that the delay of more than 2 years in bringing the Application is unreasonable, unexplained, completely unjustified and only meant to defeat the ends of justice. The Court ruled that the Judgment was a regular one. The Court also observed that although the Judgment was delivered on 20/7/2023, the Application to set it aside was filed on 19/4/2024 – about 9 months later. The Court held that “where appearance was entered and a Defence filed, like in this case, execution of the Judgment entered after the ex parte hearing of the case (in the absence of the Defendant) does not require service of the Notice for entry of suit Judgment”. He also based his Ruling on the “……..flowing my analysis above and after a careful consideration of the Application, submissions by parties and on perusing the Defence, which contains mere denials, the conclusion I come to is that the Applicant has not satisfied this Court that he deserves this Court’s discretion to set aside the regular ex parte Judgment entered against him. The Application was hence dismissed with costs following which the current Appeal was filed on the following grounds: - I have carefully gone through the proceedings in the lower Court as well as the Judgment of the Court. To begin with, the Judgment was to be delivered on Notice since the Trial Magistrate was on transfer. This is evident from the letter by D.K Kaburu & Co Advocates dated 21/3/2023. The firm wrote to the Chief Magistrate, Nyahururu to the effect that: - “*......... ... The above matter was forwarded to Honourable Susan Mwangi (SRM) to compile her Judgment following our letter dated 1512/2022...............The same has not been sent back to the station and we shall appreciate if you could liaise with Honourable Susan Mwangi (SRM) in order for the file to be returned back for delivery of the Judgment................we shall appreciate your expedited action.......”* When Judgment was read on 20/7/2023, the same was delivered “virtually in Murang’a and in the presence of the Court Assistant – Margaret and Mr. Kaburu for the Plaintiff. Going by the letter above, even Mr Kaburu for the Plaintiff was in a state of uncertainty and concern as to when the Judgment was going to be delivered by Honourable Susan Mwangi (SRM) who was on transfer and it is not even indicated where she had been transferred to. Only in the Coram in the Judgment is it indicated that the Trial Magistrate was delivering the Judgment from Murang’a. It is not clear how Mr. Kaburu for the Plaintiff got the information that Judgment was going to be read on the indicated date. Much more of concern is that it is not shown that the Appellant, acting in person, had any Notice of the entry of the Judgment. Earlier, on 10/11/2022 the same Court had delivered a Ruling allowing the Appellant to file his relevant Pleadings “within 30 days from delivery of this Ruling failure to do so the Court shall go ahead and deliver its Judgment.....”. This Ruling was as well delivered virtually in the presence of Mr Kaburu for the Plaintiff/Respondent and in the absence of the 1st Defendant (Appellant) “who was aware of today’s Ruling date via Notice which had been issued.......” The undated Notice referred to by the Learned Trial Magistrate read something like this; - NOTICE TO ALL ADVOCATES AND LITIGANTS I wish to notify you that the following Rulings and Judgments will be delivered on 10/11/2022 at 2:00pm through the virtual Nyahururu Court 3 teams Link: - 1. ELC No. 333 of 2018 Zaweria Wanjiku Hunyu v James Ngura Thiongo **( Waichungo Martin Advocate) ( Nderitu Komu Advocate)** 1. CMCC No. 163 of 2018 Grace Nyokabi Kahuki & Another v Monarch Insurance Co. Ltd **Gekonga Advocate) ( Marende Nyaundi Associates)** 1. ELC No. E087 of 2021 Daniel Muthee Kariuki v Gideon Gathekia Mwaka & 3 Others **( Waichungo Martin Advocates) (Wanjiru Gladys Advocate)** 1. **CMCC No. 164 of 2018** 2. **……………………………...** 6……………………………….. 7……………………………….. 8……………………………….. 9………………………………... 10. ELC No. E063 OF 2021 John Mwangi Ndirangu -vs- Cyrus Gaita Ndirangu and another. ( Kaburu Advocate ) ( 1st Defendant in person) 11.CMCC No. 202 of 2017 Peter Kihuria Kamau v Mathee Flowers Limited ( **Gekonga Advocate) ( Muthee Wambugu Advocate**) The Notice did not specify the link and the Appellant cannot have been expected to know what “Court 3 Teams Link” referred to bearing in mind that virtual hearings and proceedings were new in the Court system. Even assuming that he had read the undated Notice, he can’t have been expected to know what “Court 3 Teams link” meant. There is also no evidence that this Notice was brought to the Notice of all the Advocates and Litigants. On the Judgment Notice dated 23/3/2023 which was properly communicated to the Appellant through his last known address in his Pleadings i.e. P.O. Box 159, Ndaragwa on the date indicated thereon for the delivery of Judgment/Ruling – 26/4/2023 in Murang’a Law Courts, nothing appears to have taken place. At least from the proceedings filed in the Record of Appeal. The last that was heard of in the case was on 5/4/2022 when the Honourable S.N. Mwangi said as follows:- “.... since I am on transfer Ruling (of the Application dated 22/2/2022) to be delivered on Notice....”. This echoes a situation that was so difficult for a lay litigant to follow up and tell when his Ruling or Judgment was to be delivered. I believe this was because the case was heard partly during the cruel Corvid -19, a period when the new online rules had just been introduced and also the confusion caused by the transfer of the Trial Magistrate. I also do not agree with the Honourable C.M. Muhoro, S.R.M. that the Appellant did not deserve to be notified that a Judgment/Decree had been passed before eviction orders were issued. This is contrary to the letter and spirit of Sections 152A – 152G of the Land Act. Having said as much, this Appeal is allowed and I order that the Appellant files the documents that he was allowed to file in the Ruling dated 10/11/2022 within the next 15 days and the case to be heard de novo before any other Magistrate other than the Honourable C.M. Muhoro (SRM) or the Honourable S.N. Mwangi (SRM) Costs of the Appeal in the cause. Ruling read, **dated,and delivered at Nyandarua this 18th Day of June, 2026.** **MUGO KAMAU** **JUDGE** **In the Presence of: -** **Court Assistant: Samson** **Appellant’s Counsel: Mr. Gicheha.** **Respondent’s Counsel: Mr. Kaburu.**