Nguku v Gachuru (Environment and Land Miscellaneous Case E009 of 2025) [2025] KEELC 6611 (KLR)

4. The motion is opposed by the Respondent who has sworn a replying afidavit dated 30-5-2025, in which he replies as follows. One, contrary to what the Applicant states, he was well aware of the pleadings of ELC Case No. 164/2017 but he deliberately chose not to participate as can be seen from the afidavits of service by Edwin Munyoro Wandai and Simon Kamau Ngigi dated 24-6-2019, 11-7-2017 and 5-7-2016 respectively. All these afidavits show that the Applicant was served at his home in Kamahuha Sabasaba and he was pointed out to the process server by the Respondent himself. Secondly, after the Applicant was served with the judgment and decree in ELC 164 of 2017, he filed miscellaneous application No. 27/2018 at CM’s Court Thika and failed to serve the Respondent. He did this in a bid to defeat the judgment and decree in favour of the Respondent. He managed to lift the caution placed against the suit land and immediately subdivided the suit land into parcels Nos. 2906, 2907 and 2908 two of which he transferred to third parties but he did not transfer LR. No. 2908 which the Respondent occupies. Thirdly, even on 14-3-2025 when there was an application coming up for hearing, the Applicant attended Court and the Respondent actually saw him. Like always, he chose not to participate. Finally, during the trial, the Respondent was able to prove that he bought the suit land and he produced a sale agreement to prove that the Applicant sold the suit land and all that lacked was the consent of Land Control Board. For the above and other reasons, he prays that this litigation should came an end by the Court dismissing the motion dated 9-5-2025 which is only meant to delay justice to the Respondent. 5. Counsel for the parties filed written submissions dated 18-6-25 and 20-5-2025 respectively. Counsel for the Respondent urged that this Court should consider the principles that guide the court in exercising its unfettered discretion in deciding whether or not to allow an application such as this. These principles were laid down in the case of Nicholas Kiptoo Korir arap Salat vs. IEBC and 7 Others [2014] by the Supreme Court of Kenya. The principles include the following. a. Extension of time is not a right of the party. It is an equitable remedy that is only available to a deserving party at the discretion of the court. b. A party who seeks for extension of the time has the burden of laying a basis to the satisfaction of the Court. c. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case by case basis. d. Whether there is a reasonable should be explained to the satisfaction of the Court. e. Whether there will be any prejudice sufiered by the Respondent if the extension is granted. f. Whether the application has been brought without undue delay. 6. Counsel for the Applicant urged that the one acre claimed is not delineated and defined and this makes the Respondent’s claim unsubstantiated and the appeal raises unassailable grounds and the Court should therefore allow the application dated 9-5-2025. 7. I have carefully considered the notice of motion dated 9-5-2025 in its entirety including the grounds, supporting afidavit and annexures, replying afidavit and its annexures, the entire record in ELC 164/2017, the written submissions by learned counsel for the parties and the law cited therein. I find that the motion dated 9-5-2025 has no merit for the following reasons. Firstly, the record will show that after the Applicant was served with the originating summons dated 12-6-2015, he filed a memorandum of appearance on 25-8-2015. He did not file anything else. If he truly wished to defend the suit, he would have filed his replying afidavit together with all the evidence that he had. If he had nothing to file in the year 2015, what is it that he wants to file ten (10) years later? Secondly, I https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6611/eng@2025-09-30 2

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am convinced that the Applicant was served by the two process servers named Edwin Munyoro and Simon Kamau Ngigi on various dates in the years 2016, 2017 and 2019. I am not satisfied that he only came to know of the suit and judgment when he was served with the application for execution dated 4-3-2015. For ten (10) years, the Applicant knew of the suit and chose not to participate in it. Finally, it is immaterial that the suit land is not demarcated in the survey map. The land is available on the ground and that is all that matters. The ruling of 28-4-2025 clearly stated that the portion of land which the Respondent occupies and which measures one acre is the one to be registered in his name and that occupation overrides any title issued before or after his occupation. That should put to rest any notion that the land awarded to the Respondent is not defined because it is clearly defined in the ruling of 28-4-2025. For the above reasons, I dismiss the motion dated 9-5-2025 with costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 30TH DAY OF SEPTEMBER , 2025. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Mwangi Njonjo Applicant’s Counsel – Mr T.M. Njoroge Respondent’s Counsel – Absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6611/eng@2025-09-30 3

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