https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4907

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCL CASE NO. E062 OF 2023** **ANASTASIA WANGUI NG'ANG'A:::::::::1ST PLAINTIFF/RESPONDENTS** **ISAAC WAIRANGU KARIUKI::::::::::::::2ND PLAINTIFF/RESPONDENTS** **VERSUS** **MUSYOKI NDETI:::::::::::::::::::::::::::::::::1ST DEFENDANT/APPLICANT** **WILLY NDETI:::::::::::::::::::::::::::::::::::::2ND DEFENDANT/APPLICANT** **RULING** The application is dated 2nd February 2026 and is brought under Order 10 Rule 11, Order 51 Rule 1 of the Civil Procedure Rules 2010 as amended in 2020, Sections 1A, 1B, 3 of the Civil Procedure Act Cap 21 and Articles 50 and 159 2 (d) of the Constitution of Kenya 2010 seeking the following orders; 1. That this Application be certified as urgent and heard ex parte in the first instance owing to the imminent risk of execution arising from the ex-parte Judgment delivered on 24th June 2025. 2. That pending the inter-pates hearing and final determination of this application there be a stay of execution of the ex-parte Judgment and all consequential orders issued on 24th June 2025. 3. That the ex-parte proceedings and Judgment entered on 24th June 2025 against the Applicants be set aside in their entirety. 4. That Defendants be granted leave to enter appearance and file their Statement of Defence, Counterclaim, List of Documents and Witness Statements out of time. 5. That the amended draft defence and counterclaim List of Documents and Witness Statements be deemed as duly filed and served. 6. That the matter be admitted to full inter partes hearing and be determined on merit in the interests of substantive justice. 7. That costs of this Application be in the cause. The application is premised on the following grounds that the Respondents were never served with Summons to Enter Appearance or pleadings. That Judgment of 24th June 2025 was obtained irregularly and in violation of the Applicants right to be heard under Article 50 and of the Constitution of Kenya 2010. That the suit property claimed by the Respondents as L.R No. 337/1000 was lawfully cancelled in 2002 by the Survey of Kenya and Mavoko Town Council. That valid and subsisting title is L.R No. 337/2293 I.R 152284, registered in the name of Peter Nzuki Ndeti, the lawful owner. That the Respondents’ claim is founded on an illegally resurrected and cancelled land reference number. That the Respondents’ Claim on the land is unfounded for the reason that the illegally resurrected and cancelled L.R NO. 337/1000 has a different measurement with the L.R No. 337/2293 1.R 152284 yet it is the same land which being claimed in a nutshell L.R No. 337/2293 I.R 152284 measures 1.625 Ha while L.R NO. 337/1000 illegally resurrected measures 1.841 Ha. That it is even evident from Letter of Allotment dated 8th November, 1990 that the measurement of the illegally resurrected L.R NO. 337/1000 indicates 1.82 Ha while Land survey of Kenya Letter dated 14th October, 1991 approving the survey Plan and Certificate of Title in the name of Michael Sebastian Mutahi has a different measurement to wit: 1.841 Ha in respect to the illegally resurrected L.R NO. 337/1000 I.R 226329 Which letter of allotment, survey of Kenya letter and certificate of title the Respondents relied on in support of the suit herein despite the glaring inconsistency. That further the lease dated 23rd December, 2020 in respect to the illegally resurrected L.R NO. 337/1000 I.R 226329 between the National Government and Michael Sebastian Mutahi also shows the measurement of said land as 1.841 Ha. That this means land L.R NO. 337/1000 I.R 226329 measuring 1.841 Ha was never allotted to Michael Sebastian Mutahi therefore the Respondents cannot lay claim based on the inconsistencies in terms of different measurement on the same illegally resurrected L.R NO. 337/1000 I.R 226329 from which irregularities the judgment was obtained. That the lease title registered in favour of Michael Sebastian Kibui Mutahi on the 15th February, 2021 and transferred to the 1st Respondent herein was based on the illegally resurrected LR NO. 337/1000 which resurrection was done on the 30th November,2020 by Michael Sebastian Kibui Mutahi with the help of land surveyor where another map was prepared which map enlarged the size of the already cancelled L.R NO. 337/1000. That from the forgoing it is evident that Michael Sebastian Kibui Mutahi had no title to transfer equally the 1st Respondent had no title to transfer to the 2nd Respondent for the reason that the title to which they pitch their claim was one illegally resurrected when on the face of the record there is a valid grant in respect to L.R No. 337/2293 I.R 152284 measuring 1.625 Ha registered in the name of Peter Nzuki Ndeti way back on the 23rd October, 2009. That L.R NO. 337/1000 I.R 226329 purporting to be the same land as L.R No. 337/2293 I.R 152284 was illegally/irregularly/fraudulently resurrected as such is a nullity and anything done it cannot stand. That no prejudice shall be suffered by the Respondents if the orders sought are granted, while grave injustice shall be occasioned to the Applicants if denied. This court has considered the applications and the submissions therein. Applicants state that the judgment herein is irregular, for the reason that no summons was served upon the Applicants they only became aware of the said judgment when they were served with a decree dated 2nd July, 2025 as such the default judgment should be set aside as matter of right. That in any event the Applicants herein were wrongly sued for the reason that they are not the owners of the suit land. They are brothers to Peter Nzuki Ndeti in whose name the land was registered hence they are aware of how their brother came to acquire L.R No. 337/2293 I.R 152284 measuring 1.625 Ha. That Applicants by dint being aware of the issues of t L.R No. 337/2293 I.R 152284 measuring 1.625 Ha registered in the name of their brother have a strong and arguable defence and counterclaim raising serious issues of fraud, illegality, and indefeasible title. That the Applicants were never served with pleadings and summons to enter appearance. That he was neither served nor did he receive any summons or court papers in relation to this suit. In the case of Mohamed & Another vs Shoka (1990) KLR the appellants applied to court to set aside ex parte judgment claiming that service of summons was not properly done. On appeal the Court of Appeal held as follows; (a) *The test for the correct approach in an application to set aside default judgment are firstly whether the defence has merit, whether there will be prejudice and what the explanation for delay is.* (b) *It was for the appellant to establish on a balance of probabilities that even with the irregular return of service, they were never served.* (c) *Considering the lapse of time and taking into to account that the final judgment had been satisfied and in view of the absence of plausible explanation for the inordinate delay, the trial judge could not have exercised his discretion in favour of the appellant without prejudice to the respondent.* The principles for setting aside exparte judgements can also be found in the cases of Patel vs Cargo Handling Services Ltd (1974) E A 75andShah vs Mbogo (1968) E A 93. In Chemwolo & Another vsKubende (1986) KLR 492, the Court of Appeal held that Order IXA Rule 10 confers upon the Court an unlimited discretion to set aside or vary judgement entered in default of appearance upon such terms as are just. The power is exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, or error but not exercised to assist a person who has deliberately sought to obstruct or delay the cause of justice. I have perused the court file and find from the record on the 30th January 2024 one P.W Kariuki effected service upon the Defendants. This was done with the help of Paster Benjamin Kwatenga who pointed out the Defendants. He indicated he was a tenant and stated that the Defendants were the Landlords. The matter was mentioned in court before Justice Christine Ochieng and she was satisfied that the Defendants had been duly served and set down the matter for hearing on the 24th September 2024. The matter did not proceed on the 24th September 2024 as scheduled and was set down for the 28th January 2025. As per return of service seen by the court, the same process server/Advocate served the Defendants on the 3rd December 2024 with the hearing notice at the same location since he now knew them as he had served them before. There was no appearance by the Defendants and the matter proceeded by way of formal proof and judgement was delivered on the 24th June 2025. Be that as it may, the Applicants submitted that, the Grant with respect L.R No. 337/2293 I.R 152284 measuring 1.625 Ha was issued to Peter Nzuki Ndeti on the 23rd October, 2009 with the I. R NO. 152284 being registered on the 6th February, 2014 at which time Peter Nzuki Ndeti had occupied the land since 1997, and developed it That the Deed Plan No. 249137 with the respect to L.R No. 337/2293 I.R 152284 measuring 1.625 Ha issued in favour of Peter Nzuki Ndeti was prepared on the 18th July, 2003 a year after illegally resurrected L.R NO. 337/1000 I.R 226329 was cancelled by surveyor of Kenya. That according to the deed plan No 445369 of the illegally resurrected L.R NO. 337/1000 I.R 226329, it is evident that the same was prepared on 9th December, 2020 twelve (12) years after the deed Plan dated with respect L.R No. 337/2293 I.R 152284 was prepared. That if indeed L.R No. 337/2293 I.R 152284 measuring 1.625 Ha and the cancelled L.R NO. 337/1000 is one and the same thing the Respondents cannot claim to have a better title than that of Peter Nzuki Ndeti for the reason that L.R NO. 337/1000 was cancelled back in 2002 and re-issued as L.R No. 337/2293 I.R 152284 measuring 1.625 Ha (accordingly 1000 was cancelled and in its place 2293 was registered in 2002 thence L.R No. 337/2293 I.R 152284). I find that the defence raises triable issues as to ownership of the suit land I find this application is merited and grant the following orders; 1. That the ex-parte proceedings and Judgment entered on 24th June 2025 against the Applicants be set aside in their entirety. 2. That Defendants be granted leave to enter appearance and file their Statement of Defence, Counterclaim, List of Documents and Witness Statements out of time. 3. That the amended defence and counterclaim List of Documents and Witness Statements to be filed and served within the next 14 days. 4. That costs of this Application be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**