https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1567

Njuki v Njuki & 3 others (Civil Application E106 of 2024) [2026] KECA 1567 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1567 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E106 of 2024 K M'Inoti, LA Achode & M Ngugi, JJA July 31, 2026 Between Taracira Micere Njuki Applicant and Jane Wambui Njuki 1st Respondent Alice wathitha Ngunjiri 2nd Respondent Joyce Wanja Nderitu 3rd Respondent Sophia Muthoni Gichombi 4th Respondent (Being an application to set aside proceedings in a Reference to the full Court on 4th May 2026 in an appeal from the judgment of the Environment and Land Court at Kerugoya (E.C Cherono, J) delivered on 23rd July 2021)inELC Case No. 5 of 2020) Ruling 1.Before the Court is a Notice of Motion dated 22nd May 2026 and taken out by the respondents. They seek two substantive prayers, namely an order setting aside the ex parte proceedings held on 4th May 2026, or in the alternative, an order allowing the Court to consider their replying affidavit sworn on 14th May 2026 and submissions dated 15th May 2026 before it renders its reserved ruling. 2.The antecedents of the application are that by a judgment dated 23rd July 2021 the Environment and Land Court (ELC) at Kerugoya (Cherono, J.) awarded the respondents one acre from the parcel of land known as West Baragwe/Kariru/24, (the suit property) after finding that the applicant, Taracira Micere Njuki, held the suit property in trust for the respondents. The applicant, who was the defendant in the ELC, was aggrieved and applied before a single judge for extension of time to appeal. 3.By a ruling dated 28th November 2024, the single judge (Odunga, JA) found no merit in the application and dismissed it, but made no orders on costs. 4.By a Notice of Motion dated 16th July 2025, the applicant made a reference to the full Court from the ruling of the single judge rendered on 28th November 2024. That application was heard by this Court in the absence of the respondents on 4th May 2026 and ruling reserved for 25th September 2026. 5.In the application presently before the Court, the respondents contend that the applicant never served them with the application dated 16th July 2025 seeking reference to the full court. They add that their advocate was notified of the hearing scheduled for 4th May 2026, but unfortunately experienced internet challenges that morning and was unable to log in. 6.The respondents further explain that they were only able to obtain the application by the applicant from the Judiciary portal on 5th May 2026 and immediately notified the Registrar in writing that they had not been served with the applicant’s application and had internet challenges the previous day and were, therefore, unable to log in for the court proceedings. 7.Subsequently, the respondents filed a replying affidavit and submissions in opposition to the applicant’s reference, but by then the hearing had taken place in their absence and the ruling of the Court reserved for 25th September 2026. 8.Back to the present application, the applicant neither responded to the present application, nor filed submissions. Equally, neither her nor her advocate appeared for the hearing of this application, even though the hearing notice indicates that her advocates were served with the hearing notice on 1st July 2026. 9.The respondents’ averment that they were not served with the application for reference to the full court is not controverted. Secondly, they have attached to their affidavit in support of the application communication between their advocates and Safaricom, their internet service provider, regarding problems with their home fibre internet at the material time. 10.Having carefully considered the application, the order that best commends itself to us is not to set aside the proceedings of 4th May 2026, but instead to allow the Court to consider the respondent’s replying affidavit and submissions in answer to the applicant’s reference to the full court. Accordingly, we allow the alternative prayer in the Notice of Motion dated 22nd May 2026. Costs of the application will abide the outcome of the reference to the full court. It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.K. M’INOTIJUDGE OF APPEAL.......................................MUMBI NGUGIJUDGE OF APPEAL.......................................K. A. ACHODEJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR