https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3689

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELC NO E004 OF 2023(OS)** **KAMAU MAGU………………..…………………………………………………………...APPLICANT** **VERSUS** **JULIUS PETER IRUNGU………………………………………………………….1ST RESPONDENT** **NELIUS WANJIRU THUKU(Sued in her capacity as the legal** **representative of the estate of STEPHEN THUKU (now deceased)…… ……….2ND RESPONDENT** **AND** **EDWARD MACHARIA IRUNGU……………………….………………..1ST INTERESTED PARTY** **JULIUS GATHAIYA KAMAU……………………………………………2ND INTERESTED PARTY** **RULING** 1. This ruling is on the notice of motion dated 16-5-2025. The motion which is by the 1st Defendant seeks the following residual orders. 2. **Setting aside of the ex parte judgment dated 15-2-2024 *ex debito justitiae* (as a matter of right or out of a debt of justice) together with all the consequential enforcement proceedings and/or orders entered by consent or otherwise be reviewed, vacated and/or set aside to the extent that it affects the land title No. Loc. 13/Gitugi/877 for being an irregular judgment.** 3. **That the 1st Defendant be granted leave to file his replying affidavit out of time and defend the suit on its own merits.** 4. **That the Court process server be summoned for purposes of cross-examination of his affidavit sworn on 28-2-2023.** 5. **That the costs of this application be borne by the Plaintiff.** Prayers 1 and 2 were temporary in nature while prayer 6 was allowed on 7-7-2025. 1. The motion which is brought under Sections **1A, 1B, 3A** and **80** of the Civil Procedure Act, **Orders 10 rule 11, 12 rule 7** and **45** **rule 1** of the Civil Procedure Rules is premised on five (5) grounds and is supported by two (2) affidavits dated 16-5-2025. The gist of the grounds and the affidavit is as follows. Firstly, the Plaintiff’s suit is based on a claim for adverse possession. Secondly, neither the originating summons dated 21-2-2023 nor a hearing notice were served upon the 1st Defendant. The case proceeded exparte and a judgment dated 15-2-2024 was delivered in the matter. Thereafter the suit land was subdivided into Loc.13/Gitugi/2907 and 2908 which are registered in the names of the interested parties. Thirdly, the suit land was registered in the joint names of the 1st Defendant and his brother Stephen Thuku who is deceased and his wife, Nelius Wanjiku Thuku, has not taken out letters of administration. Finally, the 1st Defendant was condemned unheard contrary to the rules of natural justice and it is in the interests of justice that the motion be allowed. 2. The motion is opposed by the interested parties who have sworn replying affidavits both of which are dated 25-4-2026. They both respond as follows. One, they are now the registered owners of L.R. No. Loc. 13/Gitugi/2907 and 2908 respectively and L.R. No. Loc.13/Gitugi/877 does not exist. Two, the first interested party bought his land parcel from the registered owner while the second interested party inherited his parcel as a gift inter vivos from his father, the Plaintiff. Finally the interested parties do not know the 1st Defendant and be should have filed a substantive suit against and the motion should be dismissed. 3. Counsel for the parties filed written submissions dated 14-7-2025 and 16-9-2025 respectively. The issues identified are as follows. 4. **Whether the judgment on record should be set aside *ex debito justitiae* or upon the discretion of the court under Order 10 rule 11 of the Civil Procedure Rules.** 5. **Whether the 1st Defendant should have annexed a copy of his defence.** 6. **Whether it is a requirement of law that the process server should describe the person served.** 7. **Whether service was proper, prima facie.** 8. I have carefully considered the motion dated 16-5-2025 in its entirety including the affidavits, ground, written submissions and the issues raised in the motion. I make the following findings on the issues raised. 9. Regarding the first issue, I find that the ex parte judgment should not be set aside ex debito justitiae (as a matter of right or out of a debt of justice) but only if the 1st Defendant convinces the Court that there was no service and that he has a good defence. Setting aside the exprte judgment ex debito justitiae would only happen if there was no service at all. In this case, there is an affidavit by Boniface Ng’ang’a Ngaara dated 28-2-2023 which gives details of the date, time, village, sub location, location, division, sub county and county where service took place. There is also a sentence on how the process server identified the 1st Defendant. Such detailed service cannot be taken lightly. The exparte judgment may be set aside on such terms as are just. 10. As for the second issue, though it is not mandatory that a draft defence be annexed to an application to set aside an exparte judgment, it is prudent to annex a draft defence so that the Court can weigh whether there is a meritorious defence. In this case, there is evidence dating back to the years 1977, 1978 and 1979 showing that the 1st Defendant and Stephen Thuku sold L.R. No. 877 Gitugi to the Plaintiff. In the light of this, something more than mere denial of service of the originating summons is required of the 1st Defendant. That something is a draft defence. In the absence of such a draft defence, there is a real danger of setting aside of the exparte judgment only for the 1st Defendant to file no defence or a mere sham further delaying the case contrary to **Article 159(2) (b)** of the Constitution, Sections 1A of the Civil Procedure Act and 3A of the Environment and Land Court Act. 11. Coming to the third issue, I have seen the authority of ***Kenya Union of Commercial Food and Allied Workers Vs. Kenya Credit Traders Ltd[2023] KEELRRC 2403 (KLR)*** where the Court is quoted as having said, “… **the process server never named or even described the person she served…”** In this case, the persons served are named as the first Defendant and the wife of Stephen Thuku, one Nelius Wanjiru Thuku. There is therefore a difference between the facts of this cases and those in the cited authority in that in this case, the persons served are named. Besides, under Order 5 of the Civil Procedure Rules, there is no requirement for the process server to describe the person served. A look at Appendix A, No. 4 shows a model affidavit of service which has no room for the description of the person served. 1. Finally, prima facie, service upon the 1st Defendant was proper and the burden was on the 1st Defendant to prove otherwise. He is not saying that he is not from Kingongi village in Karirau sub location. He is not saying that he was not at home at 8.15 am on 28-2-2023. He is not saying that the Plaintiff did not know him. He is merely denying service. He is not convincing. 2. In conclusion and for the reasons already given, I find **no merit** in the motion dated 16-5-2025. I **dismiss** it with costs to the Plaintiff and the interested parties. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 16th day of June, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistants – Antony** **Plaintiff’s Counsel – Mr. T.M Njoroge** **Defendants’ Counsel – Miss Kimani** **Interested parties’ Counsel – Mr T.M. Njoroge**