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5. That when he sought to nd out what the suit was about, he had established that the matter had been active since the year 2018, he thereafter instructed counsel to ascertain the status of the matter and it was established that a judgement had already been entered and implementation orders issued. 6. That the pleadings in the instant suit were never served upon him, neither was he notied of the entry of any judgement against him hence condemning him unheard which was against fundamental tenant of natural justice. That consequently, the resultant decree and subsequent orders were pre-mature and illegal. 7. He further deponed that the matter was in respect to an alleged agreement entered into between the 1st defendant/respondent and the Plainti/respondent but the plainti/respondent was now seeking to take ownership of the property through adverse possession. That the suit property is registered in the name of Kimisik Arap Soo (Deceased) and the same was the sole asset of the estate available for distribution to the beneciaries pursuant to the conrmation of grant issued in Kericho Succession cause No 273 of 1999 in which he was one of the administrators. 8. That he had a good and credible defence as evidenced from his draft replying adavit marked JKM-4 and that the court made its nding under a wrong assumption anchored on the misleading adavits of service which were erroneous hence tainting the proceedings from the onset. That it was therefore fair in the circumstances that the matter be determined on merits. 9. The application was opposed by the plainti/respondent’s replying adavit sworn on May 22, 2023 in which the plainti/respondent had deponed that sometime in the year 2018, he took out originating summons and caused the same to be served upon the defendants herein who failed to enter appearance and/or defence nor attend court for hearings despite having been duly served by two dierent process servers as evidenced by the adavits of service marked ‘DKR 2 (a)-(e). Therefore, the applicant’s contention that the pleadings in the instant suit were never served upon him and that he was condemned unheard was a blatant lie since they had been given an opportunity to be heard, which opportunity they had squandered. 10. He further deponed that after the hearing and the failure on the part of the defendants to enter their defence, judgement was delivered on May 26, 2022 whereby the court found that the Plainti/ Respondent was entitled to 0.57 ha comprised in LR No Kericho/Roret/521 by virtue of adverse possession. That subsequently, upon his application, the court had directed the deputy registrar to execute the transfer forms. That the defendants were duly served with the notice of entry of judgement, decree, and order of the court hence the 2nd defendant/applicant averment that he was caught unawares was not true. That the proceedings herein having lasted 5 years, a number of court processes and orders were issued including a temporary injunction against the defendants herein. 11. That the instant judgement being regular, the court would not usually set the same aside unless it was satised that there was a defence on merit since an ex parte judgment should not be set aside to assist a person who had deliberately sought to obstruct or delay the cause of justice. 12. That the 2nd defendant/applicant’s defence contained mere denials aimed at obscuring the issues at hand in the instant matter hence the same did not amount to a good and credible defence. Further that the 2nd defendant/applicant had not come to court with clean hands since contrary to his contention that the plainti/respondent entered the suit land in the year 2010, there was documentary evidence that the defendants/applicants were aware of the plainti/respondent’s claim as early as the year 2000. That the 1st defendant had even secured consent to transfer the suit land to the plainti/respondent on June 14, 2000 as evidenced by the annexures marked DKR 8 (a)-(e). That prior to the conrmation of grant, the injunction lodged by the court had been duly registered against the title to the suit land as https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21376/eng@2023-11-09 2

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evidenced by annexure marked ‘DKR 9’. Further that the process to conrm the grant that resulted in the certicate of conrmation dated April 2, 2019 was not done in good faith as at all material times, the Defendants/Applicants were aware of the pendency of the plainti/applicant’s claim and in particular the instant suit. 13. He thus deponed that the 2nd defendant/applicant had no defence whatsoever to his claim, that the instant application was an afterthought meant to delay the fruit of justice, brought too late after execution had commenced. That even if the judgement herein was to be set aside, the 2nd defendant/ applicant would not plead and lead better evidence than his co-administrator, the 1st defendant herein, who led her replying adavit on October 1, 2019. He thus urged the court to dismiss the instant application with costs. 14. On July 12, 2023, directions were given that the Application be disposed of by way of written submissions. Accordingly, the 2nd defendant/applicant and the plainti/respondent led their written submissions. The 1st defendant/applicant neither led a response nor written submissions. 2nd Defendant/Applicant’s written submissions. 15. In support of his application, the 2nd defendant/applicant herein vide his written submissions dated July 28, 2023, framed issues for determination as follows: i. Whether the 2nd defendant/applicant was ever served with any pleadings, summons and/or other court processes in this matter. ii. Whether the ex-parted judgement dated 18th day of July (sic) 2022 should be set aside. 16. On the rst issue for determination, the 2nd defendant/applicant, maintained that his failure to enter appearance and le a defence was due to the fact that the he was not served with the summons and all other court processes hence he was unaware of the existence of the suit, until March 21, 2023 when the area chief of Tulwet location visited his homestead and informed him of the impending survey and sub-division exercise to be carried on LR No Kericho/Roret/521 pursuant to a judgment of this court. 17. That the ve adavits of service attached by the plainti/respondent in his replying adavit show that the process servers visited dierent villages not known to the defendants herein. That the consistency of the timing in which the process servers met the 1st defendant and the 2nd defendant respectively each time they served the processes casted doubt as to whether the respective services were eected. 18. He relied on the decided cases in Sebei District Administration v Gasyali & others (1968) EA 300, Samuel Njau & another v Pauline Nyawira Gitonga [2018] eKLR and Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR to submit that the plainti/respondent’s replying adavit had glaring inconsistencies as to the manner and dates of service while avoiding the central issue altogether as to whether the summons were properly served or even served afresh as the court had directed. That the integrity of the service having been questioned, the court had been accorded an opportunity to interrogate the issue further and determine the dispute on merit. Further, that the 2nd defendant/applicant had presented a draft statement of defence which raised triable issues. 19. On the second issue for determination, the 2nd defendant/applicant relied on the provisions of order 10 rule 11 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and the decided case of Richard Nchapai Leiyangu (supra) to submit that the reasons he had given for failing to enter appearance or attend court on the day that the matter proceeded for hearing was candid and excusable hence this was a proper case for the court to exercise its discretion in his favour. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21376/eng@2023-11-09 3

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20. That the plainti/respondent would not suer any prejudice if the ex-parte judgment was set aside, since all that he would suer was a slight delay in the conclusion of the instant case and that any such prejudice that the plainti/applicant may suer could be compensated by an award of costs or other directions that the court may deem t to issue. 21. He concluded by submitting that the instant case was a proper case for the court to exercise its discretion in favour of the 2nd defendant/applicant and accordingly set aside the ex parte judgement and all the consequential orders and thereafter order that the instant suit proceeds for hearing afresh as a defended case. Plainti/Respondent’s Written Submissions. 22. The plainti/respondent in his written submissions dated August 3, 2023, summarized the brief background of the matter before framing his issues for determination as follows; i. Whether there was proper service of the Originating Summons and other court processes upon the 2nd defendant/applicant. ii. Whether the judgement in favour of the plainti/applicant was obtained irregularly. iii. Whether the 2nd defendant/applicant’s application has merit. 23. On the rst issue for determination, the plainti/respondent submitted that he adhered to the provisions of order 5 rule 8 of the Civil Procedure Rules by instructing a duly licensed process server to serve the court processes upon the 2nd defendant/applicant. That as evidenced by the adavit of service dated July 12, 2018, the process server, one Vincent O. Ogutu, served upon the defendants copies of originating summons and application dated July 6, 2018 and after the said service was aected upon them, they accepted receipt but declined to sign on the copy. That according to the provisions of Order 5, Rule 13 of the Civil Procedure Rules, the defendant’s refusal to sign on the copy did not make the said service improper. 24. That both the defendants herein had been served severally with court pleadings as evidenced by the adavits of services annexed to the replying adavit, thus the 2nd defendant/applicant’s claim of not having been served with all pleadings in the instant matter was misleading and a waste of court’s precious time. 25. On the second issue for determination, the plainti/respondent relied on the decision in William Macharia Maina & another v Francis Barchuro & 3 others Kibiwott Yator Kuryases & 8 others (Interested Parties) eKLR (sic) where the court quoted the decision in James Kanyiita Nderitu & another v Marios Philotas Ghika & another, Civil Appeal No 6 of 2015 eKLR (Msa) (sic) to submit that the judgment against the defendants was regular as the 2nd defendant/applicant had neither suciently demonstrated that he had a good defence that raised triable issues, nor had he demonstrated the prejudice that he would suer if the orders sought were not granted. That the draft replying adavit annexed to the 2nd defendant/applicant’s application only contained mere denials and averments. 26. He further submitted that the 2nd defendant/applicant had conveniently chosen to deny ever being served by the plainti/respondent in spite of the overwhelming evidence to that eect and that it was not the plainti/applicant’s duty to ensure that the defendant/applicant took part in the proceedings, but rather to ensure that service of the originating summons and subsequent court processes was properly done and dispensed with, which he did. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21376/eng@2023-11-09 4

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27. He reiterated that the defendants were duly served with the originating summons whereby they acknowledged receipt but refused to sign on the copy retained by the process server. That pursuant to the said service, the 1st defendant had entered appearance and later led a replying adavit on October 1, 2019, thus the assertion by the 2nd defendant/applicant that he was neither served nor was he aware of the instant suit was a lie. 28. Reliance was placed on the decided case of C A O v J O [2018] eKLR to submit that the 2nd defendant/ applicant had not demonstrated that he had a good defence that raised triable issues which would warrant the setting aside of judgement, that even if the said judgement was to be set aside, the applicant would lead no better evidence than his co-administrators, the 1st defendant herein who had led a response. The respondent thus urged the court to nd that the 2nd defendant/applicant had been properly served wherein judgment had been delivered by the court in a regular manner. 29. On the third issue for determination as to whether the 2nd defendant/applicant’s application had merit, the plainti respondent submitted that the same lacked merit as the 2nd defendant/applicant had not satised the pre-requisites for grant of the orders sought since he had not demonstrated that he would suer prejudice in the event that the said orders were not granted. That further, there had been unexplained inordinate delay in ling the instant application. Reliance was placed on the case of William Macharia Maina (supra). 30. He thus urged the court to nd that the instant application was without merit and dismiss the same with costs to the plainti/respondent. Determination. 31. Having considered the application herein seeking to set aside the judgment of the May 26, 2022, the submissions for and against allowing the said application, we shall revert to the law applicable for setting aside judgment or dismissal and which is order 12 rule 7 of the Civil Procedure Rules which stipulates that; “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just." 32. I have considered the reasons that were presented by the applicant/2nd defendant seeking to set aside the ex-parte judgment delivered on May 26, 2022, reopen their case so that he could present his evidence. I have also considered the averments herein deponed for failure to enter appearance or prosecute their defence to wit that he was not served with the summons and all other court processes hence he was unaware of the existence of the suit, until March 21, 2023 when the area chief of Tulwet location visited his homestead and informed him of the impending survey and sub-division exercise to be carried on LR No Kericho/Roret/521 pursuant to a judgment of this court 33. I have keenly perused the adavits led in support of the application to nd out whether the applicant had valid reasons for the said failure. I took time to peruse the entire record of events that had taken place and each action since the suit was instituted in court until the entry of the Judgment herein. After judgment had been delivered in favour of the plainti as prayed in the plaint and a decree given on the May 26, 2022, and issued on the July 18, 2022, the 2nd defendant/applicant then led his application dated April 11, 2023 seeking the orders as herein above stated. Of interest is that the said application https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21376/eng@2023-11-09 5

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and submissions had been led by the rm of M/S Wilson K Chirchir & Co Advocates. The provisions of order 9 rule 7 of the Civil Procedure Rules are clear to the eect that; “ Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modications.’’ 34. It is therefore clear that a notice of appointment of Advocates has to be led in court and served in accordance with the provisions of order 9 rule 7 of the Civil Procedure Rules. In the instant matter, no such notice was led and the rm of M/S Wilson K Chirchir & Co Advocates purporting to come on record, had sought to have the court set aside the Judgment of the May 26, 2022 and its decree thereon and to have the suit reinstated. 35. In the case of Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR the Court held as follows: “ A party who without any justication decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been oered for failure to observe the rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.” 36. Indeed the issue of representation is a vital component of the civil practice and the courts cannot turn a blind eye to situations where the rules are agrantly breached. Although the applicant has a constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under order 9 rule 7 of the Civil Procedure Rules above is mandatory and thus cannot be termed as a mere technicality. The rm of M/S Wilson K Chirchir & Co Advocates ought to have made a formal application to the Court with notice to all parties who participated in the suit, for grant of leave to come on record for the Applicant. 37. Having found that the procedure set out by the law under order 9 rule 7 of the Civil Procedure Rules was not followed by the rm of M/S Wilson K Chirchir & Co Advocates, it goes that the said rm is not properly on record and has no legal standing to move the court on behalf of the 2nd defendant/ applicant. The application before me dated the April 11, 2023 is therefore struck out with cost. DATED AND DELIVERED VIA MICROSOFT TEAMS AT KERICHO THIS 9TH DAY OF NOVEMBER 2023 M.C. OUNDO ENVIRONMENT & LAND – JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21376/eng@2023-11-09 6

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