https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5260

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC CASE NO: E044 OF 2024.** **M/S NJERI'S AGENCIES LIMITED...PLAINTIFF/RESPONDENT - VERSUS -** **LOIS WAMBUI THUO ………………1ST DEFENDANT/APPLICANT** **LAND REGISTRAR KWALE......2ND DEFENDANT/RESPONDENT** **ATTORNEY GENERAL………...3RD DEFENDANT/RESPONDENT** **RULING** 1. **Introduction** 2. Prior to the delivery of an ***Ex – Parte*** Judgement slated for 22nd June, 2026, *Lois Wambui Thuo,* the 1st Defendant/Applicant herein moved the Honourable Court vide a Notice of Motion application dated 30th March. 2026. In a nutshell the application sought to arrest the delivery of impugned Judgement and setting aside of the entire proceedings by the 1st Defendant/Applicant herein. 3. The application was made pursuant to the provisions of Sections 1A,1B,3 and 3A of the Civil Procedure Act, Order 10 Rule 11, Order 51 rule 1 of the Civil Procedure Rules, 2010, Articles 40, 50 (1) and 159 ( 2 ) of the Constitution of Kenya, 2010 and all other enabling provisions of the law. 4. Upon service, the application was opposed through filing of a Replying Affidavit sworn by *Anne Marie Muthoni Anderson* the director of the Plaintiff/Respondent herein. The court will outline the details later in the ruling. 5. **The case of the 1st Defendant/Applicants** 4.The 1st Defendant/Applicant sought for the following orders: ***-*** 1. ***Spent.*** 2. ***Spent.*** 3. ***Spent.*** 4. ***That this Honourable Court be pleased to set aside the Ex - Parte proceedings [the entire proceedings] in this suit and grant the 1st Defendant/applicant leave to file out of time, a Statement of Defence, a list of documents, a list of witnesses statements, cross examine the Plaintiff and its witnesses and/or defend the suit on its merits.*** 5. ***That this Honourable Court be pleased to issue further orders that shall meet the ends of justice.*** 6. ***That costs of this application be provided for.*** 7. The application was premised upon grounds, testimonial facts and the averment listed on its face and the supporting affidavit of LOIS WAMBUI THUO the Applicant. The Applicant averred as follows that:- 8. She learnt of the suit on 18th March, 2026 when she was served with the application dated 9th February, 2026. 9. She immediately instructed her advocate to come on record on her behalf. 10. According to the deponent, she was not aware that the suit had been instituted against her in the year 2024 and stated that at no given point was she ever served with any pleadings with regards to the case. 11. The Plaintiff/Respondent had misled the court in stating that the deponent was not traceable as they had her cell - phone numbers. 12. The Applicant maintained that she had a prima facie case against the Plaintiff/Respondent and that she would be greatly prejudiced in the event that she was not allowed to ventilate her case. 13. The court was urged to allow the application in order to determine the suit on merit. 14. **The responses by the Plaintiff/Respondent** 15. In opposing the application, the Plaintiff/Respondent filed a Replying Affidavit sworn by ANNEMARIE MUTHONI ANDERSON, the director of the Plaintiff/Respondent. The deponent stated as follows that:- 16. The 1st Defendant/Applicant, by acknowledging the substituted service, had inadvertently acknowledged service upon her. 17. The 1st Defendant/Respondent could not, therefore, claim that she was not served unless she was claiming that the service was not proper. 18. The deponent stated that the decision to do a substituted service was not ultimately made by the Plaintiff/Respondent or its advocates. 19. An application was made to court and which allowed the said mode of service. 20. It was averred that a court order should only be challenged through a review or an appeal. However, the 1st Defendant/Applicant had never sought a review of the court orders of 3rd March, 2025 neither had she sought a review of the same in the current application. 21. If the 1st Defendant/Applicant wanted to challenge the order of substituted service, she should do so through the proper channel. 22. Further that if the 1st Defendant/Applicant's approach to challenging the substituted service in this application was to be considered valid, the Respondents response would be that:- * 1. Before the court could give the order for substituted service, it had to be convinced that the applicant had made reasonable efforts to serve the 1st Defendant/Applicant unsuccessfully. 2. The application for substituted service dated 30th July, 2024 evidenced the fact that the Applicant made all the possible reasonable efforts, including following up on her official registered postal address to no avail. 3. The 1st Defendant/Applicant's claim that the applicant sought substituted service maliciously is false and, evidently, she had not produced any evidence to prove that the applicant had her contacts all along. 23. On 9th February, 2026 the 1st Defendant trespassed on the applicant’s land which matter was taken up by the DCI KWALE who traced her number and availed the same to the applicant. 24. The 1st Defendant was then served with a demand letter. 25. The deponent stated that from the letter dated 9th February, 2026 the 1st Defendant knew of the existence of this case and deliberately decided not to participate in the case. 26. The application was an afterthought and ought to be dismissed with costs. 27. The suit was based on fraudulent transfer of land as the Plaintiff/Respondent still had the original title which was first issued by the Land Registrar and upon discovery of the fraud she filed this case. 28. It was stated that leave to file a defence out of time was not an automatic right. It depended on whether the service was regular and whether the applicant raises triable issues in her defense. 29. The 1st Defendant/Applicant's defense never raised any triable issues as it is just mere denials. 30. Lastly, in the event the court opted to allow the application then they should be awarded throw away costs. 31. **Further Supporting Affidavit** 32. The 1st Defendant/Applicant filed a further supporting affidavit in response to the averments raised in the Replying Affidavit opposing the application. It averred that:- 33. The applicant was not aware of the substituted service until when she was served with the application dated 30th April, 2026. 34. The applicant further stated that she had filed the application timeously and was keen to be allowed to defend her claim. 35. Land rates receipts from the county government of Kwale were annexed to the application and stated that the same was concrete evidence of her possession of the suit property. 36. Unlike the Plaintiff/Respondent, she had provided evidence of her stake on the suit property. 37. The deponent stated that other than pleading limitation of time, the applicant had demonstrated that the defense raised triable issues that ought to be determined by the court. the court was thus urged to allow the application as prayed. 38. **Submissions** 39. It is noted that the parties herein filed written submissions in support of their respective cases for and against the application. The court will give a summary of it as herein below. * + 1. **The Written Submissions by the 1st Defendants/Applicants.** 40. The 1st Defendant/Applicants filed their written submissions dated 28th April 2026 filed by the Law firm of Messrs. Seko Minayo & Company Advocates. Mr Seko Advocate identified the following issues for determination; - 41. **Whether there was proper service upon the Applicant** 42. **Whether the Plaintiff should be allowed to defend the suit and** 43. **Who pays the costs** 44. On the first issue. The Learned Counsel submitted that the Applicant was only made aware of the suit after service of the application dated 9th February, 2026 upon her. That the said service was effected through the phone. The Applicant maintained that she was never aware of the suit having been instituted against her and further that the substituted service was not within her knowledge. The court was urged to find that no personal service had been effected upon the applicant pursuant to the provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010. 45. On the second issue for determination. The Learned Counsel averred that the Plaintiff’s suit against the 1st Defendant was time barred. That the suit commenced on 8th July 2024 while the applicant purchased the property on 8th June 2012. That for that reason, the suit had commenced without leave of court 12 years after the Applicant’s purchase. That the suit was thus time barred. It was further submitted that the defense raised several triable issues including ownership and the plaintiff’s locus to institute the suit. 46. On the last issue for determination. The Learned Counsel submitted that the applicant was entitled to costs of the suit. The court was urged to allow the application as prayed. * + 1. **The Written Submissions by the Plaintiff/Respondents** 47. The Law firm of Messrs. Mwaniki Gitahi & Company Advocates filed submissions on behalf of the Respondent herein dated 30th April, 2026. Mr. Mwaniki Advocate commenced his submission by raising the following issues for consideration. On whether the substituted service was valid, it was submitted that the substituted service effected upon the applicant was effective and met the required threshold of proper service. The Learned Counsel stated that an order for substituted service had been made on 3rd March, 2025 and the same was effected. That the affidavit of service dated 23rd May, 2025 confirms that indeed service was effected. 48. On whether the Applicant should be granted leave to file a defense out of time. The Learned Counsel asserted that the defense was full of mere denials and they did not raise any triable issues. That in the event that the applicant was allowed to file the defence then it should be with strict timelines together with an order for them to pay throw away costs. Lastly, the Learned Counsel urged that the application be dismissed with costs. * + - 1. **Analysis and Determination** 49. I have carefully read and considered the pleadings herein by the Applicants and Respondent, the written submissions and the cited cases, the relevant provisions of [the Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) of Kenya, 2010 and statutes. 50. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed the following three ( 3 ) salient issues for its determination. These are: 51. ***Whether the Notice of Motion application dated 30th March, 2026 is merited?*** 52. ***Whether the parties herein are entitled to the reliefs sought.*** 53. ***Who bears the costs of the application dated 30th March, 2026?*** ***ISSUE No. a). Whether the Notice of Motion application dated 30th March, 2026 is merited?*** 1. Before delving into discussions on the merit of the application, it is noted that the application was premised upon the provisions of Order 10 Rule 11 of the Civil Procedure Rules, 2010 which provides as follows:- **“Where judgment has been entered under this order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”** A reading of this provisions clearly stipulates that the court has unfettered discretion to set aside judgment on such terms as it deems fit and just [see “***Shah – Versus - Mbogo and Another [1967] EA 116].*** 1. It should be noted that Judgement in this matter is yet to be delivered and hence the application to have it stayed and for the proceedings to be set aside. For this matter I believe that the wrong provisions of law have been relied upon by the Applicant. Be that as it may, what is before court is an application for setting aside proceedings and for the 1st Defendant to be allowed to ventilate her case by filing the defense. 2. The issue of service is pertinent in this matter. It is noted that the court directed that the Applicant be served by way of substituted service. The directions were effected, the Applicant however states that she was not aware of the service and that she only learnt of the suit when she was served with the application dated 9th February, 2026. However, the Respondent states that service was properly effected, that the defense filed by the Applicant is full of mere denials and the same ought to be disregarded by the court. 3. I have considered the arguments raised by the parties herein, I have also had the chance to peruse the pleadings by the Applicant and the issues raised therein. It has been alleged that the Respondent has no locus to institute the suit as it has not been proved that she is a daughter to the director of the company. It is further stated that no documents have been availed by the Plaintiff/Respondent to confirm that the suit property is registered in the names of the Plaintiff as alleged. That no copies of a search were further not annexed to the pleadings. The Applicant also alleged that the suit was stale for being filed out of time. 4. The court has considered the arguments by the parties. This being a land matter and considering the volatile nature associated with land disputes, it will be prudent for the court to employ its overriding objectives the issue of service notwithstanding. 5. The overriding objective of the court under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Courts Act, No. 19 of 2012 is to ensure **to facilitate the just, expeditious, proportionate, affordable and accessible resolution of the civil disputes** justice is met through equal protection of rights of the parties before it. **Section 1A**of the Civil Procedure Act, Cap. 21 provides for the Overriding Objectives and the rules made thereunder and provides as follows: **1A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.** **(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).** **(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.** 1. **The provision of Section 1B** of the same Act, on the other hand provides for the duty of court and states: **(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims —** **(a) the just determination of the proceedings;** **(b) the efficient disposal of the business of the Court;** **(c) the efficient use of the available judicial and administrative resources;** **(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and** **(e) the use of suitable technology.** 1. I hereby exercise discretion and invoke the overriding objective of the law in civil cases as stipulated and allow the application by the Applicant. It is my view that in the interest of justice and to guard the litigants right to a fair hearing, it is safe to grant the orders sought pending the hearing and determination of the suit. 2. I am guided by the decision of the court in the case of:- “[***Abdullahi Mohammed – Versus - Mohammud Kahiye***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/7375)***[2015] eKLR”***which cited the Court of Appeal case of “[***Stephen Boro Gitiha – Versus - Family Finance Building Society & 3 others***](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/44)***[2009] KECA 44 (KLR)”*** where the court put forth the proposition that the overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way. 3. In the case of:- *“****African Safari Club Limited – Versus - Safe Rentals Limited, Nai. Civ. App. 53 of 2010 (ur)”***the Court held:- ***“…with the above scenario of almost equal hardship by the parties, it is incumbent upon the court to pursue the overriding objective to act fairly and justly…to put the hardships of both parties on scale… we think that the balancing act is in keeping with one of the principles aims of the oxygen principle of treating both parties with equality or placing them on equal footing in so far as is practicable.”*** 1. Also in the case of: “***Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22, Oder, JSC”*** stated: ***“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered”.*** 1. Under the provision of Article 50 (1) & ( 2 ) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution), every party has a right to be heard and the fundamental duty of the court is to ensure that the parties that are seeking justice can access justice by being accorded such opportunity to be heard. 2. The decision to not hear a litigant is punitive in nature and it is undertaken by the court under very extreme and particular circumstances. I am in agreement with the decision of the Supreme Court of Uganda in the case of “***The Management Committee of Makondo Primary School and Another – Versus - Uganda National Examination Board, HC Civil Misc Application No.18 of 2010”****,* as cited with approval by **Lenaola, J (as he then was)** in the case of:- “***Mandeep Chauhan – Versus - Kenyatta National Hospital & 2 Others [2013] eKLR”***to the effect that: *“****It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase***'audi alteram partem'***literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard”*** 1. In the case of “***[Mureithi Charles & Another – Versus - Jacob Atina Nyagesuka](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1805%22%20%5Ct%20%22_blank) [2022] KECH 1805 (KLR)”***, the court held as follows:- *“****28.In considering whether or not to set aside a Judgement, a Judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the Judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the Judge. It is, as I have held elsewhere in this ruling an unfettered discretion, although it is to be used with reason, and so a regular Judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to invoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure. It is then not a case of the Judge arrogating to himself a superior position over a fellow Judge, but being required to survey the whole situation to make sure that justice and common sense prevail. Indeed, there is no parallel with an appeal. The Judge before whom the application for setting aside is presented will have a greater range of facts concerning the situation after an inter - partes hearing, than the Judge who acts ex parte. Moreover, the Judge is not interfering with the findings made by a fellow Judge but is making sure that injustice or hardship would not result from accident, inadvertence or excusable mistake or error. The substance of his Judgement would be that in view of the defence, there is prima facie defence. He may not be satisfied with the blunders or non-attendance of the Defendant or his advocate, but nevertheless he may hold that it would be just to set aside the ex - parte Judgement. See Bouchard International (Services) Limited – Versus - M’mwereria [1987] KLR 193; Evans – Versus - Bartlam [1937] 2 All ER 647.”*** 1. **For the fore going reasons, I discern that in the interest of natural justice, Conscience and Equity based on the principle of fair hearing under the provision of Article 25 ( c ), 48, 50 ( 1 ) & ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, this Honourable Court opines that it will be prudent to allow the parties herein to ventilate their respective cases in the interest of justice.** ***ISSUE No b). Who bears the costs of the application dated 30th March, 2026?*** 1. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal action and proceedings in any litigation. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event. By the event, it means the result of the legal action. 2. In the case of:- “***Reid, Hewitt & Co v Joseph, AIR 1918 Cal 717 and Myres – Versus - Defries (1880) 5 Ex D 180,*** the House of Lords noted that: - ***“The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.”*** 1. Similarly, in the case of: - “***Farah Adwa Gullet – Versus - CMC Motors Group Ltd [2017] eKLR***the Court of Appeal held:- ***“…….it is our finding that the position in law is that costs are at the discretion of the Court seized of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning.”*** 1. Since this application was necessitated by the failure of the Applicant to file defence within time, the Applicant is condemned to meet the costs of this application. 2. **Conclusion and Disposition** 3. Consequently, upon conducting an elaborate analysis of the issues set out herein, the Honourable Court based on the Principle of Probabilities and the balance of convenience, it proceeds to grant the following orders: 4. **THAT the Notice of Motion application dated 13th December, 2025 by the 1st Defendant/Applicant be and is hereby found to be meritorious thus allowed.** 5. **THAT the Defendant/Applicant be and is hereby granted TWENTY ONE (21) DAYS Leave from the date of the delivery of this Ruling to fully comply with the provision of Orders 7 and 11 of the Civil Procedure Rules, 2010 to wit file and serve the Statement of Defence, witness Statement ( s ) and bundle of documents out of time pursuant to the provision of Order 50 Rules 6 & 7 of the Rules.** 6. **THAT the Plaintiff granted FOURTEEN (14) DAYS corresponding leave to file a reply to Defence and any further documents from the ones by the Defendant if need be.** 7. **THAT the 1st Defendant/Applicant to pay the Plaintiff/Respondent a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs. 150, 000.00/=) as Thrown away costs to cater for all the resources – financial expenses, man hour and time and/or any other inconveniences they may have incurred towards setting the matter for hearing and the actual hearing herein WITHIN THIRTY (30) DAYS from the date of this Ruling herein.** 8. **THAT there be a Mention on 19th October, 2026 for conducting a Pre – Trail Conference pursuant to the provision of Order 11 of the Procedure Rules, 2010. There shall be a hearing on 1st February, 2027 ELC No. 1, Kwale preferably through Physical Means.** 9. **THAT costs of the application awarded to the Plaintiff/Respondent.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS** **VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ….21ST ………… DAY OF ………..JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mwaniki Advocate for the Plaintiff/Respondent. 3. M/s. Obura Advocate holding brief for Mr. Seko Advocate for the Defendants/Applicants.