https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4111

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC CASE NO. 752 OF 2017** *(Formerly Machakos High Court ELC NO. 47 OF 2016)* **CHARLES GATONYE GICHINGA**………………...........**PLAINTIFF/1ST RESPONDENT** **VERSUS** **WAITITU OLE SAYIORE**....................................................**1ST DEFENDANT/APPLICANT** **KENYA ELECTRICITY** **TRANSMISSION CO. LTD**……………………………..**2ND DEFENDANT/RESPONDENT** **RULING** ***(In respect of the application dated 16th December 2025 seeking the setting aside of the judgement in favour of the Plaintiff)*** **Introduction** 1. This ruling determines the Notice of Motion application dated 16th December 2025, brought under a Certificate of Urgency of even date by the 1st Defendant/Applicant, Waititu Ole Sayiore. 2. The 1st Defendant/Applicant approaches this Honourable Court seeking primarily to set aside the judgment entered against him in this matter in favour of the Plaintiff. Furthermore, the Applicant seeks the setting aside of the subsequent ex parte judgment delivered on 20th April 2022 and all consequential orders arising therefrom; essentially to re-open the suit and have the matter heard afresh. Consequently, the Applicant prays for leave to enter appearance and file a Defence out of time, urging the Court to reopen the proceedings so that the matter may be heard on its merits. 3. The foundational premise of the application is the Applicant's contention that he was entirely unaware of the proceedings, having never been served with the summons to enter appearance or any subsequent court proceedings. The Applicant avers that he only became aware of the suit's existence when execution orders dated 2nd October 2025 were forwarded to his son via a WhatsApp message by his area chief, followed by the incident of a rider throwing court documents into his compound the next day. In light of this, the Applicant argues that he was condemned unheard, thereby violating the rules of natural justice and his constitutional right to a fair hearing under Article 50(1) of the Constitution of Kenya. 4. The application is opposed by the Plaintiff/Respondent, Serah Musiani. The Respondent asserts that she obtained a Limited Grant of Letters of Administration *ad litem* on 26th August 2025 (in Kajiado Chief Magistrate’s Court Ad Litem Cause No. E054 of 2025) to substitute her late husband who was the original Plaintiff in this case. In her Replying Affidavit dated 3rd June 2026, the 1st Respondent categorically denies the Applicant’s claims of non-service. She avers that she has resided on the disputed property for over 41 years and asserts that the Applicant was a party to the initial land transaction in 1984, thereby possessing full knowledge of the proprietary disputes concerning the land. 5. The Plaintiff/Respondent’s position is further supported by the Replying Affidavit of her Advocate, Mr. Jonathan Omangi, sworn on 3rd June 2026. Counsel avers that following the judgment of 20th April 2022, he took active steps to facilitate a settlement. He details a specific meeting convened in 2023 at the offices of the Athi River Assistant Chief, Nelly Mutunkei, attended by the Respondent, a former area councilor, the Assistant Chief, and a person identified as the Applicant’s son. Counsel deposes that at this meeting, he personally handed a copy of the judgment to the 1st Defendant/Applicant. Consequently, the Respondent argues that the Applicant’s claim of ignorance is a fabrication and that the current application is a belated attempt to evade a judgment of which he has had actual notice for several years. 6. The 2nd Defendant/Respondent, Kenya Electricity Transmission Co. Ltd (KETRACO), also filed a Replying Affidavit on 13th February 2026, sworn by Walter Akwabi Chiboli, its Senior Legal Officer. The 2nd Defendant highlights its statutory mandate as a State Corporation and its reliance on the court’s judgment regarding the property, aligning itself with the Plaintiff's position in resisting the application. 7. The procedural history of this matter includes a Preliminary Objection filed by the Plaintiff on 19th January 2026, which challenged the validity of the Applicant's motion. This Court heard and dismissed the said Preliminary Objection, allowing the substantive motion to proceed to this stage. Having considered the arguments and materials placed before it by all parties, the Court now proceeds to determine the application on its merits. **Directions** 1. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. The sole issue for determination is whether, notwithstanding the Applicant’s claims of non-service and the death of the original Plaintiff, there exists sufficient legal or equitable grounds to warrant the exercise of this Court’s discretion to set aside the judgment delivered on 20th April 2022. **Analysis and Determination** 1. The Applicant’s primary contention is that he was never served with the summons to enter appearance, thereby denying him his constitutional right to a fair hearing. However, this claim of ignorance is untenable when weighed against the uncontroverted evidence on record. The Replying Affidavit of Jonathan Omangi, Advocate, sworn on 3rd June 2026, details a meeting held in 2023 at the offices of the Athi River Assistant Chief, Nelly Mutunkei. At this meeting, attended by the Applicant, his son, and a local councilor, a copy of the judgment was physically handed over to the Applicant. 2. The Court finds that "service" under the Civil Procedure Rules is intended to ensure a party has actual notice of the proceedings against them. Once actual notice is established, technical objections regarding the mode of service lose their potency. As established in ***Patel vs. East African Cargo Handling Services Ltd [1975] EA 263***: ***"The discretion of the court to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.”*** 1. The Applicant further asserts that the suit became a nullity following the death of the original Plaintiff, Charles Gatonye Gichinga, in June 2025. The record confirms that Serah Musiani obtained a limited grant of letters of administration *ad litem* on 26th August 2025 (Kajiado Chief Magistrate’s Court Ad Litem Cause No. E054 of 2025). This grant vests the representative of the estate of the deceased with the requisite legal standing to sustain the suit. The Applicant’s argument is therefore procedurally and substantively flawed. The mandate of an administrator *ad litem* is to act on behalf of the estate specifically for the purposes of litigation. As articulated in ***In Re Estate of Kairu (Deceased) [2008] eKLR***: ***"An administrator ad litem is appointed for the specific purpose of the suit and has the capacity to prosecute or defend the action on behalf of the estate."*** 1. Further, the Applicant seeks to rely on the principle in ***Muturi v Wayua (Civil Case E011 of 2025) [2026] KEHC 3359 (KLR),*** where the High Court set aside an *ex parte* judgment, noting that the applicant deserved a chance to be heard, particularly given the "colossal sum" at stake. However, the current case is clearly distinguishable. In the *Muturi case*, the applicant provided a reasonable basis for the late filing and established triable issues. In contrast, the Applicant here had actual notice of the judgment way back in the year 2023 but remained dormant for over two years, acting only when the execution process was initiated. 2. This Court’s discretion cannot be invoked to rescue a litigant from the consequences of their own inaction. The principle of *vigilantibus non dormientibus jura subveniunt* (the law assists the vigilant, not the indolent) applies accordingly. As held in ***Shah vs. Mbogo [1967] EA 116*:** ***"The discretion of the court… is a judicial discretion and must be exercised on sound principles. It cannot be exercised to assist a party who has been guilty of inordinate and unexplained delay."*** 1. Finally, the Court considers the position of the 2nd Defendant/Respondent, KETRACO. Unlike a purely private disputant, the 2nd Defendant is a State Corporation operating under a statutory mandate to provide electricity transmission infrastructure. Having relied on the finality of the 2022 judgment to commit to national infrastructure projects, the crystallization of third-party rights creates a significant prejudice that outweighs the Applicant’s belated request**.** 2. In view of the foregoing, the Court finds that the Applicant has failed to establish a basis for the court to exercise of its discretion in his favour. The evidence of actual notice in 2023 negates the claim of non-service; the appointment of the administrator *ad litem* properly regularized the proceedings; and the Applicant’s inordinate delay, coupled with the prejudice to the 2nd Defendant’s public utility mandate, precludes the grant of the equitable reliefs sought. 3. Accordingly, the Notice of Motion dated 16th December 2025 is hereby dismissed for want of merit with costs to the Respondents. Ordered accordingly. **Dated, Signed and Delivered Virtually at Kajiado this 2nd Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Parseina for the 1st Defendant/Applicant Mr. Omangi for the Plaintiff/Respondent Mr. Wachira for the 2nd Defendant/Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**