https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4223

Muria v Wangui & another (Environment and Land Case E151 of 2023) [2026] KEELC 4223 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4223 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E151 of 2023 CA Ochieng, J July 9, 2026 Between Peterson Karani Muria Plaintiff and Elizabeth Wangui Defendant and Omega Jua-Kali Association Interested Party Ruling 1.What is before the Court for determination is the Defendant’s Notice of Motion application dated the 4th November 2025 in which she seeks the following Orders:a.Spent.b.That this Honourable Court be pleased to set aside the interlocutory judgment entered against the Defendant in the instant suit.c.That this Honourable court be pleased to grant leave to the Applicant to file their Statement of Defence, witness statement, list of documents, list of witnesses and documents out of time by this Honourable Court.d.That this Honourable court be pleased to unconditionally admit the annexed draft Statement of Defence.e.That this Honourable court be pleased to order the process server, David Kamanguya to avail himself for cross-examination during the Trial.f.That costs for the Application be provided for. 2.The application is premised on grounds on its face and on the Defendant’s supporting affidavit. She avers that she has just learnt that this suit was filed against her, proceeded to trial and judgment was entered against her, yet no notice of intention to sue, or service of the pleadings was effected upon her, occasioning her grave injustice. 3.She contends that the alleged service herein by the process server, one David Kamanguya is irregular as he has never indicated in his affidavits of service that she received or acknowledged service of alleged documents claimed to have been served upon her. Further, that the said process server does not indicate the names of the alleged house helps or people who opened the gate for him at her alleged residence and there is no confirmation that the alleged house belongs to her. She insists that merely slipping of documents at a random house door does not amount to proper service. 4.She points out that the Plaintiff is her father-in-law by virtue of being the father to her late husband, Jesse Mwangi Karani (deceased), whose estate she is duly appointed as the administrator and who was the registered owner of the suit property, having been issued with a Certificate of Ownership by the Interested party. 5.She contends that her annexed Statement of Defence raises reasonable and triable issues that requires this Court’s assessment as she stands to lose her matrimonial home, which she has developed and where she has resided with her children for many years and made several developments since her late husband passed away. She further contends that the Plaintiff will not suffer prejudice, as he can be compensated through costs since judgement is yet to be entered. Response 6.The Plaintiff filed a replying affidavit in opposition. He avers that the Defendant is a stranger to him and that if she cohabitated with his late son, he was not aware as he never paid dowry to her parents or even visited their family. He claims that he is the owner of the suit premises, by virtue of his membership to the Interested Party and that he has constructed thereon. 7.He contends that the Defendant’s documents are forged and that she has been continuously at her residence, which she has occupied through force and use of Mungiki. Further, that she threatened to harm him when he attempted to enter the premises after his son's death mysteriously on 3rd April 2021, by hanging in the house. 8.He also points out that the Defendant is a party in HCFP&A/E2266/2021 Nairobi, where she was reminded severally by his advocates herein, who also act for him in the said suit, that she should file her Defence in this matter but she adamantly refused. Further, that this suit has also been severally revealed in the said Succession Cause before Justice Riechi, where she has also skipped Court on the date she was supposed to testify. He contends that since evidence in this suit has already been tendered and he has filed submissions, the Defendant’s application ought to be dismissed. 9.He urges the Court to refer to the Affidavits of Service dated 10th August 2023, 13th December 2023, 19th March 2024, 22nd August 2024, 7th November 2024, 12th February 2025, 20th March 2025 and 6th August 2025, which indicate that the Area Chief assisted the process server on effecting service at the Defendant’s premises. 10.The application was canvassed by way of written submissions. Submissions 11.The Defendant submits that proper service was not effected as required under Order 5 of the Civil Procedure Rules, thus proceedings herein are fundamentally defective and interlocutory judgment entered is irregular and ought to be set aside. Further, that this Court has power to set aside default judgment under Order 10 Rule 11 of the Civil Procedure Rules, upon such terms as are just and that Sections 1A, 1B, and 3A of the Civil Procedure Act empowers it to exercise its inherent jurisdiction to meet the ends of justice and prevent abuse of the court process. She also submits that she has a plausible defence which raises triable issues and the Plaintiff will not be prejudiced. 12.To buttress her averments, the Defendant relied on the following cases:Shah v Mbogo & Another [1967] EA 116, Patel v E.A. Cargo Handling Services Ltd [1974] EA 75; James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR and Shadrack Arap Baiywo v Bodi Bach [1987] eKLR. 13.On his part, the Plaintiff submits that the Defendant's application is intended to delay the conclusion of the case, having been aware of the proceedings, as she was served with Court documents on several occasions, and was even verbally notified during related succession proceedings but she failed to enter appearance within the prescribed time. 14.He also submits that the draft defence annexed to the application raises no triable issues, as it is a mere general denial lacking any substantive response to his claim. He also disputes the Defendant's assertion that she has an interest in the property through her deceased husband and maintains that the deceased never owned the suit property claimed by the Defendant but she unlawfully occupied it through force and intimidation. Analysis and Determination 15.The record indicates that on 20th February 2025, this Court granted the Defendant twenty-one (21) days’ leave to file and serve her defence despite the fact that pleadings had already closed. When she failed to do so, the suit proceeded to hearing where the Plaintiff’s case was heard and closed. The Defendant’s case was also closed on the 22nd September 2025 as she did not appear for hearing. As things stand, this matter is awaiting judgement. 16.The question the Court is faced with therefore is whether in the circumstances, proceedings should be set aside, and the Defendant allowed to defend this suit by filing her defence, witness statement and documents. 17.The Defendant contends that she was never served with summons to enter appearance or any pleadings. She also challenges the affidavits of service sworn by the process server, one David Kamanguya, on the ground that they fail to identify the persons who allegedly received the documents on her behalf. 18.On his part, the Plaintiff maintains that the Defendant was duly served on numerous occasions as set out in the affidavits of service dated 10th August 2023, 13th December 2023, 19th March 2024, 22nd August 2024, 7th November 2024, 12th February 2025, 20th March 2025 and 6th August 2025 respectively. He further contends that the Defendant had actual knowledge of the suit through the related succession cause and deliberately ignored this suit. 19.In this instance the Defendant claims she was never served with summons to enter appearance and that interlocutory judgement was entered against her. I have perused the Court record and there is no indication that there was an interlocutory judgement entered against the Defendant. The Defendant has sought to set aside the said interlocutory judgement and to be allowed to defend the suit by filing a Defense, which draft she has annexed. 20.Before I make a determination on whether to set aside the proceedings herein and allow the Defendant to file a Defence, I wish to analyse the affidavits of service which were filed herein, to confirm whether the Defendant was served or not. These affidavits of service are dated 10th August 2023, 13th December 2023, 19th March 2024, 22nd August 2024, 7th November 2024, 12th February 2025, 20th March 2025 and 6th August 2025 respectively. 21.I wish to highlight certain averments by the process server as contained in some of the affidavits of service. In the affidavit of service dated the 10th August, 2023, the process server explains that on the 21st July, 2023, together with the Plaintiff and the Area Assistant Chief called Anampiu, who directed them to the Senior Chief called Namusia, the Defendant was summoned through the phone, and when she came to the Chief’s office with one of the Village Elders called Mzee Mutuku, the process server served her but she threatened them and said they would meet in Court. As per the affidavit of service dated the 13th December, 2023, it indicates that on the 11th October, 2023, when the process server proceeded to serve the summons to enter appearance at a house in Kayole, he found a boy named Gift who was with the househelp, the said lady called the Defendant, who told her to receive the documents but not sign. Further, as per the affidavit of service dated the 22nd August, 2024, it indicates the Defendant’s house manager named Pauline Nekesa was served at Kayole Plot No. 41 on LR No. 18280/1/2/3. As per the affidavit of service dated the 7th November, 2024, it indicates the Defendant’s sister was served at Kayole Plot No. A41 on LR No. 18280/1/2/3. Further, in the affidavit of service dated the 6th August, 2025, it indicates the process server left the hearing notice at the Defendant’s house at Plot No. A41 Kayole. In the said affidavit of service, the Plaintiff even took a photograph of the house where the service was effected. 22.The Defendant has not denied that they were involved with the Plaintiff who is her father in law, in the Nairobi HC P&A E 2266 of 2021. Further, she has not denied that she was informed of the proceedings herein through the P&A case. The Defendant has further not denied that she resides on the aforementioned parcel of land, which is the suit parcel herein. She has however disputed service and I note in all the affidavits of service, there is no indication that any of the recipients ever signed the documents served. 23.Order 5 Rule 8 of the Civil Procedure Rules provides that:‘(1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.(2) A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.’ 24.In Lee Mwathi Kimani v National Social Security Fund & another [2014] eKLR it was held that:“…. Service of summons is a vital step in initiating litigation and thus until the summons are properly served upon the Defendant, the Defendant has no valid invitation to defend the suit’’ 25.Further, in Anjeli Limited v Kenga Simba & 12 others; Chengo Omar & 19 others (Intended Interested Parties) [2021] eKLR, it was held that:“If a party is properly served and opts not to come to court, he can have nobody but himself to blame when judgment is entered against him. Nobody should shun a court proceeding thinking that they will automatically get an order for setting aside the judgment.” Emphasis Mine 26.The Court of Appeal also stated as follows in Kenya Power & Lighting Co Ltd v Abdulhakim Abdulla Mohamed & another [2017] eKLR:“The overriding consideration in an application to set aside a default judgment where the intended defence raises triable issues and, absent evidence of intention or deliberate action by the Appellant to overreach, obstruct or delay the cause of justice, is to do justice to both parties…” 27.Based on the facts as presented while associating myself with the decisions quoted, and from my analysis above, I find that the Defendant was severally served through persons within her residence although she disputes it. Be that as it may, on perusal of the draft defence annexed to the instant Notice of Motion application, I find that it raises triable issues. In the interest of justice, noting that the dispute herein revolves around property claimed by a father in law and daughter in law, and since judgement herein is yet to be delivered, I will exercise my discretion and allow the Defendant to defend herself but she has to compensate the Plaintiff through costs. 28.In the foregoing, I will allow the instant Notice of Motion application in the following terms:a.The proceedings of 22nd September, 2025 be and are hereby set aside and the Defendant granted leave to defend this suit.b.The Defendant to pay thrown away costs of Kshs. 20,000/ = to the Plaintiff within fourteen (14) days from the date hereof.c.The Defendant to file and serve her Statement of Defence, witness statement and list and bundle of documents within fourteen (14) days from the date hereof.d.Upon service, the Plaintiff to file his reply to defence and any further documents including witness statements within fourteen (14) days from the date thereof.e.Failure by the Defendant to comply with Orders No. (a), (b) and (c) above within the stated timelines, the said Orders will stand vacated and this suit will proceed as undefended.f.Costs of this application is awarded to the Plaintiff. DATED SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ms Mwangi for Defendant/ApplicantKahuthu for Plaintiff/RespondentCourt Assistant: Vena