https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4141

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT NAKURU** **ELC MISC. E078 OF 2025** **JOHN WACIRA CHIRI …………………………….………….APPLICANT** **VERSUS** **MATHEW CHEBON CHEROGONY ……….………….…RESPONDENT** **R U L I N G** 1. This ruling is in respect of the Notice of Motion dated 15th April 2026 brought under **Order 45, 51 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act).** 2. It seeks orders: 3. **Spent** 4. **Spent** 5. **That the court be pleased to set aside the orders issued on 23rd March 2026 allowing the application dated 26th November 2025 and the Respondent be granted leave to respond to the said application.** 6. **That the cost of this application be provided for.** 7. The grounds are n the face of the Application and are set out in paragraph (a) to (f). 8. The Application supported by the affidavit of Mathew Chebon Cherogony, the Respondent herein sworn on the 15th April 2026. 9. The Application is opposed. There is a Replying Affidavit sworn by John Wacira Chiri, the Applicant herein sworn on the 15th May 2026. 10. On the 18th May 2026, the Court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 11. The Applicant’s submissions are dated 11th June 2026. Counsel submitted that there must be some finality to litigation. Further that there have been previous proceedings relating to the parties over the same subject matter and the court has pronounced itself vide the Judgment dated 28th March 2025. 12. It is also submitted that the Applicant herein ought to be allowed to enjoy the fruits of his judgment. 13. The Respondent’s submissions are dated 11th June 2026. Reliance is placed on **Orders 45 rule 1(b) of the Civil Procedure rules and section 80 of the Civil Procedure Act.** 14. It is submitted that the Respondent, was not served with the Notice of Motion dated 26th November 2025 as the Advocates now on record, did not have instructions. 15. It is further submitted that the Respondent had not given the firm of M/S Waiganjo & Company Advocates any instructions in this matter. Reliance is placed on **Orders 5 Rule 8 of the Civil Procedure Rules.** 16. It is submitted that the Respondent, ought to have been served personally and as such there is sufficient reasons for the court to set aside the ruling. He prays that the Application be allowed. 17. I have considered the Notice of Motion, the affidavit in support, the response thereto, the written submissions, and the authorities cited. The issue for determination is whether the Application is merited. 18. It is not in doubt that Judgment in ELC 212 of 2013 was delivered on the 28th March 2025 by Honorable. A O Ombwayo J whereby the Respondent’s suit was dismissed. 19. By the notice dated 23rd April 2025 he was required to vacate the suit property upon the expiry of three (3) months. 20. It appears, he did not, which necessitated the Applicant to file the Notice of Motion dated 26th November 2025. The said application was served on the Respondent’s Advocates. 1. As the Respondent did not appear the Court allowed the said application in its entirety. 2. I have gone through the Respondent’s Affidavit and I find no plausible reason to set aside the Orders of the 23rd March 2026. The Respondent was aware that his case has been dismissed. No appeal was preferred against the said judgment. 1. I find that this application is an abuse of the court process and the same is dismissed with no orders as to costs. **Ruling dated, signed and delivered at Nakuru this 1st day of July 2026.** **L KOMINGOI** **JUDGE** **In presence of :-** Mr. Oumo for the Applicant Ms. Wangari for the Respondent Court Assistant: Irene/ Derrick