https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3794

Muthoni (Suing as a personal representative of Phyllis Wanjiru Njoroge- Deceased) v Ngugi & 4 others (Environment and Land Case 342 of 2018) [2026] KEELC 3794 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELC 3794 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 342 of 2018 TW Murigi, J June 12, 2026 Between Serah Njeri Muthoni (Suing as a personal representative of Phyllis Wanjiru Njoroge- Deceased) Plaintiff and Charles Njoroge Ngugi 1st Defendant Lucia Wanjiru Ngugi 2nd Defendant Samson Mahugo Ngugi 3rd Defendant The Land Registrar, Nairobi 4th Defendant and Damsyl Investments Limited Intended Defendant Ruling 1.Before me are three applications for determination. 2.The first application is a Notice of Motion dated 20th March 2025 brought under Articles 50 and 159 (2) of the Constitution of Kenya 2010, Order 1 Rule 10, Order 10 Rule 11 and Order 51 Rules 1, 3, 10 (1 & 2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, in which the Intended 5th Defendant/Applicant seeks the following orders:i.Spent.ii.That the firm of Rumba Kinuthia & Co. Advocates be and is hereby granted leave to enter appearance post Judgment for and on behalf of the Applicant herein.iii.That the Judgment delivered on the 10th Day of February 2025, and all consequential orders therein, be set aside and the suit be heard de novo.iv.That the Applicant be and is hereby joined as a Defendant to this suit to enable their case.v.Spent.vi.That the Applicant be granted leave to file a Defence within the timelines provided in the Civil Procedure Rules upon service of the amended summons and pleadings by the Plaintiff/Respondent.vii.That the costs of this application be provided for. 3.The application is based on the grounds appearing on its face together with the supporting affidavit of Nixon Wanjohi Mburungo, the Applicant’s Director, sworn on even date. The Applicant’s Case 4.The deponent averred that the Applicant is the registered proprietor of land parcel Dagoreti/Riruta/6549 (currently Nairobi/Block 66/6549) the suit property herein, having acquired it through a sale agreement dated 24th August 2015 with the 1st to 3rd Defendants. He explained that the suit property was transferred into the joint names of the 1st to 3rd Defendants and the Applicant before the full payment of the purchase price, and a title deed was issued on 5th April 2018. After the consideration was paid in full and all necessary government taxes and fees were settled, the suit property was transferred solely to the Applicant, and a title deed was issued on 14th January 2021. 5.He averred that he was unaware of the proceedings in this matter until a copy of the judgment dated 10th February 2025 was brought to his attention. 6.He further stated that the Applicant has occupied the suit property since 2018 and has developed it by drilling a borehole. 7.He stated that the Applicant obtained approval from Nairobi City County for a change of use dated 28th March 2024 and a Notice of Approval to Develop dated 14th November 2024, authorising the construction of 192 studio apartments and 120 one-bedroom apartments standing 15 storeys in the suit property. He also averred that an excavation licence fee of Kshs. 60,000/= was paid to Nairobi City County on 6th March 2024 in preparation for the commencement of construction. 8.He contended that the judgment was delivered without the Applicant’s participation in the proceedings, thereby condemning it unheard and exposing it to substantial financial loss. He argued that the Applicant’s proprietary rights are substantially affected by the judgment and cannot be adequately ventilated unless it is joined as a Defendant and granted leave to file a defence. 9.The deponent argued that the joinder of the Applicant would fully resolve all issues related to the suit property and prevent further litigation. He contended that the Respondents would not be prejudiced if the orders sought are granted, while the Applicant would suffer great prejudice if they were not. He maintained that the application was made in good faith, in the interests of justice, and without delay. In conclusion, he urged the Court to allow the application as prayed. The Plaintiff’s Case 10.The Plaintiff filed a replying affidavit and Grounds of Opposition, both dated 22nd April 2025, in opposition to the application. She argued that the Applicants had failed to meet the threshold for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules 2010. 11.She further contended that the application was filed after an unreasonable and unexplained delay. 12.The deponent averred that on 10th February 2025, this Court delivered its judgment which found that the suit property is ancestral land held in trust by Ngugi Njoroge (deceased) both on his behalf and on behalf of his late sister Phyllis Wanjiru Njoroge. The judgment also declared the title held by the 1st to 3rd Defendants as fraudulent and invalid, ordered its cancellation, and directed the immediate transfer of the suit property to the estate of the late Phyllis Wanjiru Njoroge. 13.She asserted that the Applicant is a stranger to the proceedings, having neither been a party nor involved in any capacity in the litigation leading to the judgment. She argued that the claim of ignorance is untenable as the transaction through which the intended 5th Defendant claimed to have acquired the suit property was carried out during the pendency of these proceedings. She contended that any investments or developments undertaken on the suit property were performed entirely at the intended 5th Defendant's risk and cannot be allowed to override the Court's decision. 14.She argued that adding the Applicant at this stage would unfairly reopen issues that have already been settled, undermine judicial efficiency, and severely prejudice the estate of the deceased. She contended that the application offends the principle of finality in litigation and is inconsistent with the overriding objective of facilitating the just, expeditious, proportionate, and affordable resolution of civil disputes. 15.The deponent contends that granting the orders sought would deprive her of the fruits of a judgment obtained after protracted litigation since 2018, and result in the continued unlawful occupation of trust land by parties found to have acquired it through fraud. In conclusion, she argued that the application is an abuse of the Court process and should be dismissed with costs. The Response 16.In a further affidavit dated 10th June 2025, the deponent averred that the suit property was the subject of Nairobi Succession Cause No. 119 of 1993, Estate of Ngugi Njoroge, in which the High Court issued a Certificate of Confirmation of Grant dated 6th March 1998. He stated that the Plaintiff’s application to revoke the grant was dismissed by a judgment dated 17th January 2018. Consequently, the grant of 6th March 1998 has not been revoked and remained the basis on which the Applicant contracted with the beneficiaries for the purchase of the suit property. 17.He further averred that the Applicant's purchase of the suit property was a matter within the Court’s knowledge related to proceedings in Nairobi High Court Succession No. 2588 of 2012, Estate of George Njoroge Ngugi. He stated that on 6th December 2016, Hon. Lady Justice Muigai issued orders directing the Applicant to complete the payment for the purchase price of the suit property, and that upon full payment, the grant would be rectified to effect a transfer in favour of the Applicant. Upon complying, the Court rectified the grant on 6th October 2017, confirming the Applicant as the sole beneficiary of the relevant portion of the suit property. The administrators thereafter transmitted the suit property to the Applicant, as evidenced by registered transmission forms dated 5th April 2018. The deponent averred that the grants in both Nairobi Succession No. 119 of 1993 and Nairobi Succession No. 2588 of 2012 have never been revoked and remain in force. 18.Regarding due diligence, the deponent argued that the events detailed above occurred before the Plaintiff filed the present suit in 2018, by which time the Applicant had already completed payment and was registered as the proprietor of the suit property. He argued that the Plaintiff failed to establish the true ownership of the suit property before instituting these proceedings, as a simple search would have shown the Applicant is the registered proprietor, who should have been joined as a party from the outset. He contended that the orders issued in the judgment were incapable of execution as the property was registered in favour of the Applicant, who was not a party to the suit. 19.He asserted that the current grants posed a legal challenge that had led to confusion and potential non-compliance with the Court's orders. He argued that permitting the application would resolve this issue by affording the Applicant a fair hearing. 20.The second application is a Notice of Motion dated 20th February 2026, brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, and Article 159 of the Constitution, in which the Plaintiff seeks the following orders:a.Spent.b.This Honourable Court be pleased to find and/or declare that the conditional stay of execution granted vide the ruling delivered on 10th December 2025 lapsed automatically upon failure to deposit KShs. 300,000 within 45 days as ordered.c.This Honourable Court be pleased to grant the Decree-holder leave and/or directions to proceed with execution of the judgment/decree herein forthwith.d.Costs of this application be provided for. 21.The application is based on the grounds appearing on its face together with the supporting affidavit of the Plaintiff sworn on even date. The Applicant’s Case 22.The Applicant averred that by a ruling delivered on 10th December 2025, a conditional stay of execution was granted, requiring the party enjoying the stay to deposit the sum of Kshs. 300,000/, in Court and in default, the stay would lapse automatically. 23.She averred that the party directed to make the deposit had failed, refused, and neglected to do so and as a result, the conditional stay had lapsed. Accordingly, she argued that there was no subsisting order barring execution of the decree. 24.She further averred that she continues to suffer prejudice by being denied the fruits of the judgment, despite the clear default by the party that sought the stay. In conclusion, she urged the Court to allow the application as prayed. 25.The third application is a Notice of Motion dated 11th March 2026 brought under Order 45 Rules 1 and 2 and Order 50 Rules 5 and 6 of the Civil Procedure Rules, and Section 1A, 1B and 3A of the Civil Procedure Act, in which the 1st- 3rd Respondents seek the following orders:a.Spent.b.That this Honourable Court be pleased to grant orders for stay of execution of the judgment of the court pending inter-partes hearing of this applicationc.That this Honourable Court be pleased to enlarge the time within which the Defendant/Applicants can comply with the directions of the Court issued on 10th December 2025, pending the inter-partes hearing of this applicationd.That the costs of this application be in the cause. 26.The application is based on the grounds appearing on its face together with the supporting affidavit of the 1st Defendant, sworn on even date. The Applicants Case 27.The deponent asserted that following the ruling of 10th December 2025, he endeavoured to raise the sum of Kshs. 300,000/= which was to be deposited in Court within 45 days, but his monthly salary was insufficient to meet that obligation within the stipulated period. He stated that he approached his Sacco, Unaitas Sacco, for a loan to enable him and the other Applicants to comply, but was informed that his deductions would only be sufficient by the end of March 2026. 28.He averred that on 12th January 2026, he obtained a loan and is now able to make the required deposit as the funds are available. He contended that the delay in complying with the Court's directions was not intentional but was due to genuine financial constraints arising from pre-existing loan obligations, as shown by his payslip. 29.The deponent asserts that they are willing to comply with the Court's directions to ensure that the matter is resolved expeditiously. He contended that they would suffer substantial loss if the order of stay is vacated, as the appeal would be rendered nugatory. The deponent argued that the Plaintiff would not be prejudiced if the orders sought are granted. 30.The applications were canvassed by way of written submissions. The Intended Interested Party/defendant/applicant’s Submissions 31.The intended 5th Defendant filed its submissions dated 10th June 2025. 32.On behalf of the Applicant, Counsel submitted that the sole issue for determination is whether the Applicant has satisfied the threshold for joinder of Defendant post judgment. 33.On the applicable legal principles, Counsel relied on Merry Beach Limited v. Attorney General & 18 Others [2018] eKLR, where the Court of Appeal held that exceptional circumstances can justify the joinder of a party after judgment, such as when a matter has been determined and adverse orders are issued against a party who was neither notified of the suit nor heard on the issues in dispute. 34.Further reliance was placed on Musyoka & 3 Others v. Kisangi & Another [2024] KEELC 5417 (KLR). Counsel also cited Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR, where the Supreme Court held that an Interested Party is someone who has a stake in the proceedings, will be affected by the court's decision, and whose interests will not be well articulated unless they appear and champion their own cause. Counsel further cited Meme v. Republic [2004] 1 EA 124, where the Court identified the grounds for joinder including the need to settle all issues in the proceedings, the protection of a party who would otherwise be adversely affected, and to prevent unnecessary prolonged litigation. 35.Regarding due diligence, Counsel submitted that the transactions related to the acquisition of the suit property were completed before the present suit was filed in 2018. 36.Counsel contended that the Plaintiff failed to ascertain the true ownership of the suit property before instituting proceedings. Counsel argued that a simple search would have disclosed the Applicant as the registered proprietor who should have been joined from the outset. 37.Counsel submitted that the right to a fair hearing is a core principle of natural justice. Counsel cited on JMK v. MWM & Another [2015] KECA 524 (KLR) and Onyango v. Attorney General (1986-1989) EA 456, where it was held that a decision made in breach of the rules of natural justice is not cured by demonstrating that the same outcome would have been arrived at; what matters is that the affected party receives a fair hearing. 38.In conclusion, Counsel urged the Court to allow the application as prayed. The Plaintiff’s Submissions 39.The Plaintiff filed her submissions dated 30th April 2026. 40.On behalf of the Plaintiff, Counsel submitted that the application should be dismissed on four main grounds: the doctrine of lis pendens, constructive notice, the regularity of the judgment, and the derivative and tainted nature of the Applicant's title. 41.Counsel submitted that the Applicant is bound by the judgment by virtue of the doctrine of lis pendens, expressed in the maxim pendente lite nihil innovetur, which provides that a transfer of immovable property, subject to ongoing litigation, cannot override or defeat the rights of the parties under any decree ultimately made by the Court. 42.Counsel relied on Peter Mburu Echaria v Priscilla Njeri Echaria [2001] KECA 349 (KLR), where the Court of Appeal held that the doctrine is grounded in equity and public conscience, and that any transfer made during the pendency of a suit is subject to the final outcome of that suit. Further reliance was placed on Jumba & Another v Metto & 2 Others (ELC No. 30 of 2020) [2023] KEELC 15957 (KLR), where the Court applied the principle that alienations pendente lite cannot prevail. Counsel submitted that the Applicant acquired the title on 14th January 2021, when the suit was still pending hearing and determination. Counsel argued that the Applicant, as a pendente lite transferee from the 1st to 3rd Defendants, cannot claim a higher right over the suit property than that held by its transferors. Counsel argued that its claim to indefeasibility under the Land Registration Act cannot shield it from the consequences of the doctrine. 43.Counsel submitted that the Applicant had constructive notice of the pending suit and cannot claim innocence. Counsel relied on Owako v Mong'oa & 4 Others [2022] KEHC 16955 (KLR) and Njogu & 2 Others v Githinji & 2 Others [2025] KEELC 936 (KLR), where the Courts held that parties who are aware of pending suits and failed to apply for joinder timeously could not use post-judgment proceedings to reopen concluded litigation. 44.Counsel submitted that the judgment was regularly entered after a full hearing between the Plaintiff and the 1st to 4th Defendants. Counsel contended that the judgment was not an ex parte default judgment entered against the Applicant in its absence. Counsel argued that the ex debito justitiae standard, which applies to irregular judgments against unserved parties, was not applicable because the Applicant was not a party to the suit. 45.Counsel submitted that the Applicant's title is derivative and tainted by the fraudulent dealings of its vendors. Counsel argued that the principle of nemo dat quod non habet applies in this case since the court had determined the 1st to 3rd Defendants' title as invalid, and the Applicant's derivative title could not survive the judgment. Counsel relied on Eighty-Four Investments Limited v Irungu & 4 Others [2025] KECA 1365 (KLR), where the Court of Appeal held that a transferee who fails to establish that their acquisition was independent of fraud affecting the root of the title cannot seek protection under the Land Registration Act. Further reliance was placed on Wakaimba v Registrar & 3 Others [2025] KEELC 1058 (KLR), where the Court reaffirmed the standard for establishing fraud on the title as set out in R.G. Patel v Lalji Makanji [1957] EA 314. 46.Counsel submitted that the appropriate remedy for the Applicant lay in independent proceedings rather than challenging the judgment through post-judgment joinder. Counsel argued that the Applicant’s attempt to be joined as a Defendant after judgment to relitigate a seven-year-old matter is not a legitimate exercise of the right to be heard, but an attempt to deny the Plaintiff the fruits of a validly obtained judgment. Counsel further submitted that the Applicant failed to demonstrate triable issues that could not have been addressed through its vendors, whose interests aligned with those of the Applicant throughout the proceedings. To support this argument, reliance was placed on Alibhai v Wandera & 3 Others [2025] KEHC 1377 (KLR), Njogu & 2 Others v Githinji & 2 Others [2025] KEELC 936 (KLR), and Mary Mugo & Others v Obadiah H. Wainaina [2024] KEELC 322 (KLR). 47.Counsel submitted that the Applicant entered into a commercial transaction fully aware of the circumstances and that any loss it now faces is a consequence of its commercial risk. Counsel argued that failure to verify that the vendors were parties to active litigation over the very property being purchased is not a ground for equitable intervention. 48.Counsel submitted that the application for stay of execution should also be dismissed, as the Applicants have not met the required threshold. Relying on Kaithia v Kavila & Another [2024] KECA 1614 (KLR), Counsel argued that the Applicant was required to demonstrate substantial loss, lack of unreasonable delay, and provide sufficient security, but failed to do so. Regarding substantial loss, Counsel contended that the loss alleged was a result of a deliberate commercial acquisition during active litigation rather than an unforeseen judicial act. Counsel further submitted that no explanation was offered as to why the Applicant, having been co-registered on the title from April 2018 and having completed full acquisition in January 2021, took no steps to monitor litigation concerning the property in question. Additionally, Counsel argued that the Applicant failed to offer security, thereby leaving the Plaintiff indefinitely deprived of the benefits of the judgment without any assurance of indemnity. 49.In conclusion, Counsel urged the court to dismiss the application with costs. Analysis And Determination 50.Having considered the applications, the respective affidavits and the rival submissions, the following issues arise for determination:i.Whether the Intended 5th Defendant should be joined as a Defendant in this suit;ii.Whether the judgment delivered on 10th February, 2024, should be set aside; andiii.Whether the Court should enlarge the time within which the Defendants are to comply with the orders issued on 10th December 2025. Whether The Intended 5Th Defendant Should Be Joined As A Defendant In This Suit 51.The intended 5th Defendant seeks to be joined as a party to these proceedings after judgment. The application is based on Order 1 Rule 10 (2) of the Civil Procedure Rules, which provides:“(2)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 52.Order 1 Rule 3 of the Civil Procedure Rules provides that:“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” 53.The principles governing joinder were succinctly stated in Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] eKLR, where the Court held that a party seeking joinder must satisfy the following conditions:“ 1.He must be a necessary party. 2.He must be a proper party. 3.In the case of the defendant there must be a relief flowing from that defendant to the plaintiff. 4.The ultimate order or decree cannot be enforced without his presence in the matter. 5.His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.” 54.Similarly, in Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKLR, the Court of Appeal reaffirmed that the power to join a party under Order 1 Rule 10 is discretionary and stated as follows:“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined.” 55.The threshold for post-judgment joinder is a higher one. In Lilian Wairimu Ngatho & Elizabeth Murungari Njoroge v Moki Savings Co-Operative Society Limited & Lucy Wanjiru Kiruhi [2014] KEHC 7224 (KLR) the Court held that:“The provisions of Order 1 Rule 10(2) state that joinder of a party can be made “at any stage of the proceedings”. “Proceedings” are defined in Black’s Law Dictionary Ninth Edition at page 1324 as “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment”. A party can therefore only be joined to a suit at any time during the pendency of the suit, but not after the same has been concluded. This finding is premised on the basis that the purpose for joinder is to enable the court effectually and completely adjudicate upon and settle all questions involved in a suit. It is therefore of no use if a party seeks to be joined when the court has already made its findings on the issues arising.Similarly, the main purpose for joining a party as a Defendant under Order 1 Rule 3 of the Civil Procedure Rules is to claim some relief from the said party, and therefore such joinder can only be made during the pendency of a suit. As this court has declined to set aside the judgment herein, there is no suit pending before this court, and the Applicants cannot therefore be joined as parties at this stage.” 56.In the matter at hand, the Applicant contends that its proprietary rights are directly affected by the judgment, that it was not a party to the proceedings, and that it was condemned unheard. The Applicant asserts that it contracted with the 1st to 3rd Defendants for the purchase of the suit property pursuant to a sale agreement dated 24th August 2015, and that it was registered as the sole proprietor by title deed dated 14th January 2021. It further contends that the transactions leading to its registration were made with the Court’s knowledge in related succession proceedings. It was argued that the Plaintiff failed to verify its registered ownership before filing the suit. 57.The record shows that no relief was sought against the Applicant in the suit, nor was its presence necessary to resolve the issues raised at trial. The judgment was directed at the title held by the 1st to 3rd Defendants, which was declared fraudulent and invalid. The Applicant’s interest in the suit property, however significant, is entirely derivative of and dependent on the title of the 1st to 3rd Defendants, whose interests align with those of the intended 5th Defendant throughout the proceedings. Consequently, the Applicant’s interests are well represented by the Defendants already on record. 58.This Court finds that the Appplicant is bound by the judgment by operation of the doctrine of lis pendens. In Mawji vs US International University & another (1976) KLR 185, Madan J.A stated:“Every man is presumed to be attentive to what passes in courts of justice of the state or sovereignty where he resides. Therefore, a purchase made of a property actually in litigation pendete lite for a valuable consideration and without any express or implied notice in point of facts affects the purchaser in the same manner as if he had notice and will accordingly be bound by the judgment or decree in the suit”. 59.The Applicant was issued a sole title on 14th January 2021 while this suit was ongoing. The transaction was conducted during the pendency of these proceedings. The Applicant therefore stands in the shoes of its vendors, the 1st to 3rd Defendants, and is bound by the judgment entered against them as if it had been a party throughout. In Carol Silcock v Kassim Sharrif Mohamed [2013] eKLR, it was held that:“It will be a mockery of justice for the court to subject the Plaintiff to another rigour of litigation as against the Intended Interested Party and prove fraud as against the said party. Every man, as quoted in the preceding paragraphs, is presumed to be aware of the pending suits, especially litigation involving land governed by the ITPA, 1882. Therefore, purchase made of a property actually in litigation pendente lite for valuable consideration affects the purchaser in the same manner as if he had notice and will be accordingly be bound by the judgment or decree in the suit.” 60.The Applicant cannot avail itself of the claim of constructive ignorance. Its own affidavit discloses that it contracted with the 1st to 3rd Defendants, who were parties in the present suit. 61.The principle of nemo dat quod non habet also applies against the Applicant. Since the 1st to 3rd Defendants were found to hold a fraudulent and invalid title, they could not transfer any interest in the suit property to the Applicant beyond what they themselves possessed. 62.This Court is further guided by the principle of finality in litigation. The Plaintiff has litigated this matter since 2018 and obtained judgment after a full hearing. Allowing joinder at this stage would effectively reopen a concluded suit, relitigate issues already fully ventilated, and deprive the Plaintiff of the fruits of a valid judgment. Whether The Judgment Should Be Set Aside 63.The Applicant sought to set aside the judgment delivered on 10th February 2024. 64.Courts have the discretionary power to set aside an ex parte judgment to do justice to the parties. The discretion should be exercised to prevent injustice. Order 10 Rule 11 of the Civil Procedure Rules states that:“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.” 65.In Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubede (1982-1988) KAR, the Court of Appeal observed that:“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties.” 66.The well-established principles for setting aside interlocutory judgment were outlined in the case of Patel v East Africa Cargo Handling Services Ltd (1974) EA 75, where the Court held that:“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex parte judgment, except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules”. 67.The discretion is not intended to assist a litigant who deliberately seeks to obstruct or delay the course of justice. In Shah v Mbogo & Another [1967] EA 116 the Court held that:“The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 68.The Applicant was not a party to this suit. It cannot seek to set aside a judgment that was not entered against it. The judgment delivered on 10th February 2025 was not an ex parte judgment entered under Order 10 Rule 11 of the Civil Procedure Rules due to the Defendant's failure to enter an appearance. It was a judgment entered after a full hearing inter partes between the Plaintiff and the 1st to 4th Defendants. No relief was sought against the intended 5th Defendant in the judgment. The jurisdiction invoked under Order 10 Rule 11, therefore, does not arise. 69.It is further notable that an appeal against this court’s judgment is currently pending before the Court of Appeal. If this court were to find merit in the application to set aside the judgment, it would render the appeal nugatory. Whether Time Should Be Enlarged For Compliance With The Conditional Stay Order Of 10Th December 2025 70.By a ruling delivered on 10th December 2025, this court granted a conditional stay of execution of the judgment, requiring the deposit of Kshs. 300,000/=as security within 45 days, failing which the stay would lapse automatically. 71.The 1st Defendant stated that the failure to deposit the sum within the required period was not deliberate but was due to genuine financial difficulties caused by existing loan commitments. He argued that he has since received the necessary funds through a loan approved in his favour. This Court concludes that the explanation provided is not one of deliberate disobedience but of financial hardship. 72.The Court is mindful of the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which require the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. The 1st to 3rd Defendants have confirmed that the funds are available and they are ready to comply with the orders. 73.Considering that an appeal has been filed against the judgment, a refusal to extend time would effectively bar an appeal without testing its substantive merits. This Court is satisfied that the interests of justice favour granting a reasonable extension of time for compliance, provided the deposit is made without further delay. 74.The Plaintiff's application for a declaration that the stay has lapsed is therefore overtaken by events, subject to the direction issued below. 75.In light of the foregoing, this court makes the following orders:a.The application by the intended 5th Defendant dated 20th March 2025, seeking joinder as a Defendant and setting aside the judgment dated 10th February 2025, is hereby dismissed.b.The 1st to 3rd Defendants are hereby granted time and are directed to deposit the sum of Kshs. 300,000/= as ordered on 10th December 2025, within 14 days of this ruling, in default, the stay of execution shall lapse automatically.c.The Plaintiff's application dated 20th February 2026 is overtaken by events in light of the order at (b) above.d.Costs shall be in the cause. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 12TH DAY OF JUNE 2026…………………………………….HON. T. MURIGIJUDGEIn The Presence Of:Irungu for the ApplicantAhmed – Court assistant