Njoroge (Suing as the administrator of the Estate of Samuel Mwangi Njoroge) v Mwichambe & 3 others (Environment and Land Case E041 of 2022) [2025] KEELC 7583 (KLR)

II. The 2nd Defendant/Applicant’s case. 3. 4. The 2nd Defendant/Applicant sought for the following orders. a. Spent. b. That pending the hearing and determination of this application, the Honourable Court be pleased to arrest the writing and delivery of the Judgment slated for 2nd July 2025. c. That pending the hearing and determination of this application, the Honourable Court be pleased to review and suspend its order directing that the hearing of the matter has been closed and that Judgment is slated for 2nd July 2025. d. That the Honourable Court be pleased to set aside the proceedings and grant leave to the 2nd Defendant to defend the suit on the merits. e. That the Honourable Court be pleased to order that the matter starts de novo with the participation of the 2nd Defendant. f. That costs be in the cause. g. That any other order in the interest of justice. The application was premised upon the grounds, testimonial facts and the averments made of the 21 Paragraphed Supporting Afidavit of Joseph Mwella together with annextures marked as “JM – 1 to 5” annexed hereto. He averred as follows that:a. He was an advocate of the High Court of Kenya, currently serving as the Legal Oficer of the 2nd Defendant/Applicant. He had full knowledge of the matters surrounding this application. In his capacity, he had authority to swear this afidavit on behalf of the 2nd Defendant/Applicant. b. He was aware that the 2nd Defendant/Applicant is registered as proprietor of property title number Kwale/Shimoni ADJ/635 (Hereinafter referred to as “The Property”) and annex and mark as “JM – 1” was a copy of the title deed for the property. c. He was aware that recently on 9th June 2025, their Operations Manager, Mr. Twalib Khamis was in attendance in Kwale Law Courts for the hearing of Kwale Chief Magistrates Court “Criminal Case Number E277 of 2021: R – Versus - Sahare Kisupi Mwichambe” and annexed and marked as “JM – 2” was a copy of the day's cause list for 9th June 2025. d. He was aware that the criminal case surrounded the suit property. The accused person in that case was impleaded herein as the 1st Defendant. e. He was aware that while in the court vicinity, their Operations Manager conferred with the prosecutor and the investigation oficer. It was at that point that he learnt that the Plaintifi/ Respondent had since filed this suit seeking to cancel the 2nd Defendant/Applicant's title to the property. f. This revelation was brought to the attention of the Deponent and who quickly laboured to peruse the Court file. Indeed, he discovered that the Plaintifi filed this suit on 27th September 2022 with the assistance of the advocates on record. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 2

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g. The Deponent had noted that service upon the 2nd Defendant/Applicant was done via substituted service by way of newspaper advertisement following the Honourable Court's orders of 30th November, 2022. h. He had seen that an advertisement was published in the newspapers - “the Standard” of the 25th January 2023 edition and “the Daily Nation” of 1st February 2023. i. Regrettably, none of them from the 2nd Defendant/Applicant saw the advertisements. j. While the 2nd Defendant/Applicant never faulted the Honourable Court at all for ordering substituted service by way of advertisement, the 2nd Defendant/Applicant grieved that the Plaintifi was not forthright when he deposed that service upon the 2nd Defendant/Applicant was impossible through the usual modes set out under the provision of Order 5 Rule 3 of the Civil Procedure Rules, 2010 hence resorting to service by advertisement for reasons: i. The 2nd Defendant/Applicant had always had its registered ofice at Dedan Kimathi Road, Plot No. Msa/Block XXV/49 & 50; Mombasa. He annexed and marked as “JM – 3” was a copy of the CR-12 form bespeaking the 2nd Defendant/Applicant's registered ofice. ii. The 2nd Defendant/Applicant's Postal address is P.O. Box 99662, Kilindini. The Plaintifi had captured this address in all his pleadings as well as the summons to enter appearance given on 27th September 2022. Annexed and mark as “JM – 4” was a copy of the summons to enter appearance; and iii. Further, the Plaintifi/Respondent captured the mobile number 0722 415 087 in his pleadings as well as the summons to enter appearance. That mobile number was operated by Mr. Twalib Khamis, the 2nd Defendant/Applicant's Operations Manage. Annexed and marked as “JM – 5” was an M-pesa screenshot associating ownership of the number with Mr. Twalib Khamis. k) By failing to demonstrate to the court all due and reasonable diligence he employed in attempts to serve the 2nd Defendant/Applicant through the usual modes before moving the court for substituted service by advertisement, the Plaintifi withheld to the court the assistance contemplated under the provision of Section 1A (3) of the Civil Procedure Act, Cap. 21. l) Away from matters service, the 2nd Defendant/Applicant had a meritorious defence to the suit, warranting juridical investigation. m) The Plaintifi recognized that the property was sold to and a title issued to the 2nd Defendant/ Applicant herein. n) Whereas the Plaintifi alleged forgery and fraud, the 2nd Defendant/Applicant maintained that it was a bona fide purchaser for value without notice. Annexed and mark as “JM – 6” was a draft of the intended Statement of Defence & Counter - Claim. o) Faced with these competing claims, it was important that the 2nd Defendant/Applicant was given an opportunity to present its case so that the court could determine which of the titles should be given jural recognition. p) The Deponent was aware that this would be in line with the provision of Section 26 (1) of the Land Registration Act, 2012 that guaranteed a proprietor hearing and adduction of credible https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 3

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evidence before a Certificate of Title was cancelled on grounds of fraud, misrepresentation or corrupt scheme. q) Short of that, the 2nd Defendant/Applicant may be condemned unheard in dissonance with the rules of natural justice and Article 50 (1) of the Constitution of Kenya of 2010. s) The prejudice of being condemned unheard by far outweighs the prejudice that the other parties would sufier should the matter restart with the 2nd Defendant/Applicant's participation. t) To demonstrate its bona fides, the 2nd Defendant/Applicant was ready to pay minimal throw away costs as an elixir for the expense of restarting the case “de - novo”. u) It was in the interests of justice and fairness that the motion herein be allowed. III. The responses by the Plaintifi/Respondent. 5. While opposing the application, the Plaintifi/Respondent herein filed a 26 Paragraphed Replying Afidavit sworn by Kevin Maina Njoroge and dated 1st July, 2025. He stated as follows that:a. He was an adult Kenyan male of sound mind and the Plaintifi/Respondent herein. b. He was conversant with the facts of this matter and could can competently swear thereto in response to the 2nd Defendant/Applicant's Notice of Motion Application dated 20th June 2025. c. From the outset, he opposed the said Application in its entirety together with all the corresponding allegations made in the Supporting Afidavit filed alongside the Application and state that the 2nd Defendant/Applicant herein was undeserving of the Orders sought. d. He personally got to meet Mr. Twalib Khamis Ali who was also known by the name Captain Hamisi during the investigations by the Kwale DCI Ofice. It was during that time that the deponent informed him that he would proceed and file a case seeking to cancel the fraudulent title and he did admit that he had been conned of money in the purchase if indeed he still had his father's title. e. Contrary to the 2nd Defendant/Applicant's averments at paragraph 2 of their Supporting Afidavit, the Plaintifi/Respondent contended that the 2nd Defendant/Applicant's Titlewas a forgery having been acquired illegally and fraudulently. Indeed the lands ofice had absolutely no lawful and valid record of the said title and green card. f. The 1st Defendant fraudulently using forged documents caused the suit property to have a fraudulent parallel Green Card as well as a Title allegedly issued on 5th October 2022 all of which was done with the sole purpose of selling and/or disposing ofi the suit property to the 2nd Defendant/Applicant using forged and fraudulent documents. g. As a result of the foregoing, the 1st Defendant never had any valid title to pass to the 2nd Defendant/Applicant as he did not have any title. Instead, all he did was pass a parallel fraudulent Title to the 2nd Defendant/Applicant which Title the Plaintifi/Respondent contended was fraudulent and forged and thus could not pass good title. In support of this assertion, was a Charge Sheet for (Kwale Criminal Case No. E277 of 2021) evidencing that the 1st Defendant had indeed been charged with obtaining land registration by false pretense as well as obtaining money vide false pretense by purporting to dispose ofi the suit property https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 4

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to the 2nd Defendant/Applicant. Annexed hereto and marked as "KM - 1" was a copy of the Charge Sheet. h. In response to the contents made under Paragraphs 3,4 and 5 of their Supporting Afidavit, the 2nd Defendant/Applicant was merely misleading this Honourable Court into issuing adverse orders which the 2nd Defendant/Applicant was undeserving of. i. The Deponent of the 2nd Defendant/Applicant knew about this case but chose not to participate in it as shown hereunder. j. The 2nd Defendant/Applicant's Operation Manager Mr. Twalib Khamis Ali was a witness in the above cited “Criminal Matter (Kwale Criminal Case No. E277 of 2021”). The 2nd Defendant/Applicant in their Supporting Afidavit at Paragraph 4 had admitted that they were aware the Criminal Matter related to the suit property. In fact they were aware that the 1st Defendant was charged with obtaining money by false pretenses from the 2nd Defendant/ Applicant. If indeed he was so charged, he could not have had a valid title to sell to the 2nd Defendant/Applicant, neither could he have passed a valid title. k. Pending the hearing of the criminal case Mr. Twalib Khamis Ali a.k.a. Captain Hamisi did approach the Deponent and made an ofier to purchase the property at the same amount they had paid the 1st Defendant but the Deponent declined and informed him a Civil suit had been filed challenging the sale and seeking the re - opening of the green card that had been intentionally destroyed to hide his late Dad's ownership of the suit land and that he would receive a call and receive the court documents. l. The Deponent gave the process server, one Mr. Vincent Mambuya the number of Mr. Twalib Khamis Ali whom they would be calling severally seeking to have him receive the summons and Plaint and supporting documents but he declined to do so. Further he also declined to disclose the location of the ofices of the 2nd Defendant/Applicant contrary to the averments that had been made. Attached and marked as “KM - 2” was a copy of the afidavit of service. m. The Deponent knew the 2nd Defendant/Applicant through oficer Khamis Ali, was therefore aware that this present suit had been filed against it but chose to ignore this fact. He personally informed Mr. Khamis Ali about the civil case. Indeed, it was him who gave the Process Server and his Advocates the subject telephone number that was put in the summons to enter appearance and the Plaint. n. This Honourable Court's record would bear him witness that the Plaintifi attempted to efiect direct service of the Summons to Enter Appearance upon the 2nd Defendant/Applicant through Mr. Twalib Khamis Ali without success as the 2nd Defendant/Applicant's Operations Manager the said Mr. Twalib Khamis Ali refused and/or neglected to give the Process Server the physical location of the 2nd Defendant/Applicant. o. Due to those failed attempts at physical service, there was no other choice but for him to file the application for service by substituted means been an advert in the two daily newspapers. This was done as the Process Server and himself had been unable to trace and efiect service of summons upon the 2nd Defendant/Applicant's directors for the principal reason that its physical ofices were unknown and efiorts to have Mr. Twalib Khamis Ali A.K.A Captain Hamisi the Operations Manager assist with the information bore no fruits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 5

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p. Vide the Application dated 24th November 2022, the deponent sought leave of Court to efiect substituted service in accordance with the provision of Order 5 Rule 17 of the Civil Procedure Rules, 2010 and which leave was granted. q. Thus contrary to what the 2nd Defendant/Applicant had deposed, it was aware about the suit but chose to hide its physical location to hide its ofice to avoid service of summons, and also chose not to come to court to defend the claim as indeed the service by advertisement was proper service. The averment that the 2nd Defendant/Applicant's oficials never saw it was meant to hoodwink the Court into issuing adverse orders that the 2nd Defendant/Applicant was undeserving of. r. The fact that the registered ofice of the 2nd Defendant/Applicant was indicated in the CR - 12 form as being Plot Number Msa/Block XXV/49 & 50 Mombasa. That did not in any manner whatsoever disclose where this was at all as it did not state the Building on which was situated if indeed it was the correct position. Neither had there been anything annexed to support that assertion of the registered ofice being in that plot. s. Therefore, this Honourable Court properly granted the Plaintifi/Respondent leave to serve the 2nd Defendant/Applicant with summons through substituted service by advertisement vide an Order made on 9th December 2022. The Plaintifi/Respondent duly returned an Afidavit of Service as proof of service through advertisement in Two (2) of the local dailies. Attached and marked as "KM - 3" was a copy of the Afidavit of Service as well as Advertisements. t. The Plaintifi/Respondent shall wholly rely on the Presumption of service as stated in the above cited Process Server's Afidavit of Service. That the burden lies on the party questioning it, to show that the return/service is incorrect. The burden of proof therefore lies with the 2nd Defendant/Applicant to show that service was incorrect. They only contend they never saw the two adverts. That was indeed proper service., u. Further, he was informed by his Advocates that the 2nd Defendant/Applicant had also not complied with the requirements needed in an Application for setting aside proceedings so as to be granted leave to defend the suit. The law was now settled that in such an Application for setting aside proceedings, the Court must consider not only the reasons why the Defence was not filed or why the 2nd Defendant/Applicant herein failed to turn up for Hearing but also whether the 2nd Defendant/Applicant has a reasonable Draft Defence annexed to the Application which raised triable issues. v. A perusal of the 2nd Defendant/Applicant’s Application reveals that the 2nd Defendant/ Applicant had attached a Draft Defence in which they claim to had been a bona fide purchaser for value without notice but which was just a sham defence. The Deponent contended that the 2nd Defendant's purported draft defence raises no triable issues at all. The 2nd Defendant had not elaborated how they acquired their alleged Title document in the defence neither have they indicated the due diligence they undertook. w. The 2nd Defendant/Applicant's averments at the contents made under Paragraphs 15, 16 and 17 of their Supporting Afidavit was meant to blatantly mislead this Honourable Court with a view of cunningly obtaining Orders yet the 2nd Defendant/Applicant had not proved and/ or satisfied the required legal threshold for granting the Orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 6

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x. In response to the averment made under Paragraph 19 of their Supporting Afidavit, it was the Plaintifi/Respondent assertion that in the event this Honourable Court is inclined to grant the Orders sought herein, then the thrown away costs to be paid by the 2nd Defendant should be inclusive of the advertisement costs, and all travel and accommodation expenses incurred by the Plaintifi/Respondent as well as the Advocate on Record when they had travelled to Kwale for Hearing and other Court attendances. y. Due to the foregoing, the 2nd Defendant/Applicant's Application was a mere afterthought, a delay tactic, a replete of outright falsehood and misrepresentation. The 2nd Defendant herein had come to court with unclean hands and the Application in its entirety is incompetent and reeks of mala fide. z. It was evident that the 2nd Defendant/Applicant had brought an unmeritorious Application, which deserved to be dismissed with costs to the Plaintifi/Respondent herein. aa. Therefore, it was in the interest of justice that the Application dated 20th June 2025 together with Supporting Afidavit thereof be dismissed with costs. IV. The responses by the 3rd Defendant/Respondent. 6. Additionally, the 3rd Defendant opposed the application by filing their 19 Paragraphed Replying Afidavit dated 27th June, 2025 and sworn by AMBETSA WILMER. She stated as follows:a. She was an Advocate of High Court of Kenya, and the Advocate in conduct of the matter; oficer of the 4th Defendant herein conversant with the facts of the case and with authority to swear this Afidavit. b. She had perused and understood the contents of the supporting afidavit of the Applicant dated 20th June, 2025 sworn in aid of the Notice of Motion application of even date, and hereby respond hereto. c. This matter was commenced by way of a Plaint dated 9th September, 2022. The Plaintifi filed a bundle of documents and witness statement of even date. d. The pleadings having closed and the parties having held a pre-trial conference, on 19th September, 2023. The matter was to proceed for hearing on 23rd July, 2024 and 22nd January, 2025 but it was adjourned but finally took ofi on 2nd April, 2025. e. It was instructive to note that the intention of the Applicant to re - open the case, introduce new evidence and give further evidence was a mere afterthought after the Plaintifi/ Respondent, 1st , 3rd and 4th Defendants/Respondents hearings proceeded and their case closed. f. This suit was filed way back in 9th September, 2022. All this time, (3 years) the Applicant had a chance to participate in the proceedings but chose not to, no exceptional circumstances have been demonstrated to justify the application now, after all the parties had closed their case. g. The 2nd Defendant/Applicant was bent on delaying or obstructing justice. The Plaintifi/ Respondent served the Applicant via substituted service by way of advertisement on 25th January, 2023 via the Standard Newspaper and 1st February, 2023 via the Daily Nation. The Applicant is thus seeking leave now to participate in the proceedings after a https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 7

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h. Judgment date had been issued by the court for 2nd July,2025. More than 2 years after the said advertisement was published. The Defendant/Applicant's acts amount to obstructing the cause of justice. The delay was not only inordinate but it was inexcusable and unexplainable. i. There was inordinate and unexplained delay. No explanation had been given by the Applicant as to why he failed to participate in the said proceedings even after service was efiected. j. Equity aids the vigilant and not the indolent. k. The instant application only amounted to and/or constituted a fishing expedition and/or excursion, which was frowned upon by the due process of the law and consequently, the instant application amounted to playing a lottery with the court. l. The application was not made in good faith and was not in the interests of doing justice to all the parties as the 4th Defendant would be greatly prejudiced in all aspects if the leave to re-open the case was granted. m. Parties were bound by their pleadings. In this case, the 2nd Defendant/Applicant was bound by her pleading (if any filed) before court and in compliance with pre - trial directions as such the application should fail. n. A trial would not be a fair trial, if a party is allowed to hide evidence and ambush the other party after close of proceedings in an attempt to sneak in documents. o. The Civil Procedure Rules of 2010 require parties to furnish and exchange their evidence in advance before the commencement of the trial. That there was no right to adduce new evidence after close of pleadings. The discretion was intended to be exercised to avoid injustice due to hardship arising from inadvertence. p. The 2nd Defendant/Applicant had not demonstrated any suficient reason to warrant grant of the orders sought and as such the application herein should be dismissed. q. In the premises it was clear that the Application consists of inaccuracies of facts and full of misrepresentation and untruths. The 2nd Defendant/Applicant herein had come to court with unclean hands and the same should not be given the light of day. r. Therefore, the 4th Defendant urged the court to dismiss the application herein as prejudice or substantial loss would be occasioned on the Defendants in allowing the application. s. It was only fair and just that the application be dismissed with costs as it was wholly devoid of merit. V. Submission. 7. On 2nd July, 2025 while all parties were present in Court, it was agreed by consensus that the application dated 20th June, 2025 to dispose ofi by way of oral submissions. Pursuant to that the 2nd Defendant/ Applicant, the Plaintifi/Respondent, the 3rd & 4th Defendant/Respondent proceeded on accordingly. The 1st Defendant opted not to participate in the proceedings. 8. The parties were accorded an opportunity to highlight their submission orally as follows. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 8

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A. The Oral Submissions by the 2nd Defendant/Applicant. 9. Mr. Mureithi Advocate commenced his submissions by stating that before Court for hearing was the Notice of Motion application dated 20th June, 2025. The application sought to arrest the delivery of Judgement writing and delivering by court. The Counsel stated that the 2nd Defendant/Applicant needed to participate in the proceedings before the final decision was arrived at. His submission was that they were served with replies from the Plaintifis/Respondents, the 3rd and 4th Defendants/ Respondents. He was yet to receive replies from the 1st Defendant. We had filed skeletal arguments and ready to have it orally highlighted subject to the availability of time. 10. The application was supported by an Afidavit sworn same date by Joseph Mwela – 2nd Defendant Legal Oficer. There were attached several annextures to it. They had filed skeletal submissions dated 1st July, 2025. In principles, the 2nd Defendant/Applicant wished to urge the Court to arrest the writing of Judgement and allow them to be joined and heard on its merit. The grounds had been set out. 11. According to the Counsel, all the parties concurred that the court has jurisdiction to hear and entertain the matter altogether. It should not present in justice and hence it has powers to arrest the Judgement. The Learned Counsel contended that there existed two (2) Certificates of title deeds for the same suit. However, one of the title was held by the police while the second one was held by the 2nd Defendant/ Applicant. 12. Primarily, the main contention in the case was on the ownership of the land. One of the parties and the title would carry the day. To buttress his argument, the Learned Counsel referred Court to the provision of Sections 24, 25 and 26 (I) of Land Registration Act, No. 3 of 2012. His strong contention was that there would be need for parties to prove ownership as per the title – see annexture marked as “JM-1”. The Learned Counsel argued that despite of all this, during the hearing of the matter the 2nd Defendant/Applicant never participated in the suit hence not gotten opportunity to defend its case. The Learned Counsel raised strong issues on the alleged service upon the 2nd Defendant/Applicant. He stated that the Plaintifi/Respondents though knowing the full contacts of the 2nd Defendant/ Applicant being a an incorporated legal entity still never efiected it upon them. Instead, they sought for leave to efiect service by substituted ways. These were the main reasons for not participating in the suit. They wondered why and in as much as they did not question the proprietary of the service but all along the Police had all the postal and physical address. According to the Counsel, the provision of Order 5 Rule 3 of the Civil Procedure Rules, 2010 spells out the grounds for serving a legally constituted Corporation. The Counsel held that the 2nd Defendant/Applicant never saw the Advertisement published in the local dailies of “The Daily Nation” nor “The Standard” newspapers. They only came to learn of the civil case from attending related criminal case over the same subject matter whatsoever. They sought to be allowed to participate in the proceedings. As a way of demonstrating their commitment to the matter, the 2nd Defendant/Applicant had already drafted and attached a Draft Statement of Defence and a Counter – Claim. From the said pleadings and their evidence, they would demonstrate that they were bone - fide purchaser for value. 13. To counter the argument by the Plaintifis/Respondents that they would sufier prejudice if the application was allowed was baseless and unfounded. According to the 2nd Defendant/Applicant, there could be no other person to sufier prejudice than them. They underscored to the fact that, land was a sensitive issue in Kenya and it was protected under the provision of Article 40 (1) of the Constitution of Kenya, 2010. The Counsel beseeched the Court to invoke the principles of natural justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 9

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14. In conclusion, the 2nd Defendant/Applicant took cognizance and recognizes the fact that the parties had incurred expenses incurred while prosecuting this case so far. With regards to it, they apologized. Hence, they would be willing and ready to give thrown away costs but at a reasonable sum. They urged Court to be allow the application. B. The Oral submissions by the 3rd & 4th Defendants/Respondents. 15. M/s. Ambetsa Advocate for the 3rd & 4th Defendants/Respondents informed Court that they had filed both their replies and submissions in the main suit. They were ready to highlight them accordingly. They opposed the application. The Learned Counsel provided the Court with a brief facts of the case. She stated that the suit was filed on 9th September, 2022 by the Plaintifi/Respondent herein. 16. It was the Counsel’s contention that the 2nd Defendant/Applicant had the chance to participate in the proceedings but chose not. Instead, they chose to appear today when the Judgement was supposed to be delivered. Its in excusable and in ordinate. The Learned Counsel opined that there no cogent reason had been given. To state that they never saw the advertisement in the newspaper was no good reason enough to justify the granting of the orders sought from the application. The Learned Counsel held that she had perused the pleading. With the leave of Court, in accordance with the provision of law, the advertisements were published on 25th January, 2023 in “The Standard” newspaper and on 1st February, 2023 in the edition of “The Daily Nation” newspaper. These were proper service in accordance to the provision of the law. There were no exceptional circumstances. Besides, the application had not been made on good faith. It should be dismissed with costs. C. The Oral Submissions by the Plaintifi/Respondent 17. Mr. Thimba Advocate stated that he wished to fully align himself with the submissions made by M/ s. Ambetsa Advocate. He stated that the 2nd Defendant/Applicant had been properly and adequately served with the pleadings as clearly shown by the Afidavit of Service by the Court Process server and the two (2) advertisement in newspaper on two (2) of difierent dates. This decision was made after all efiorts were made to locate them but found to be in vain. 18. The Learned Counsel referred Court to the Replying Afidavit the contents under Paragraph numbers 10 to 16 by the Plaintifi/Respondent. They clearly explained how he got the cell phone number while in the DCIO ofices. Through their interaction with Captain Hamisi, but he declined to inform the Plaintifi/Respondent of the Physical address for the 2nd Defendant/Applicant. The Counsel alerted him the 2nd Defendant/Applicant were to be sued in a Civil matter. Hence its out of the frustration that the police came to court for assistance to serve by substitution means. 19. Captain Hamisi the operation manager had not deposed to the facts/averments in an afidavit. Hence they ought to be disregarded. There was no application made for the cross examination. The Counsel relied in the case of: “Philip Mula Mulaya – Versus - Samwuel Muinde” on substituted service. 20. He made reference to the Defendant’s title attached to the Defence. They had not attached an oficial search from the Land Registrar’s ofice. From the record, the matter had already gone very far. There was nowhere that the Plaintifi had sought for the cancellation of the 2nd Defendant’s title. On the contrary, its actually the 2nd Defendant who was seeking for the cancellation of the Plaintifi’s title. 21. The Learned Counsel argued that his client had incurred a lot of expenses while prosecuting the case. Thus, in the event that the court was inclined to allow the application, they would be seeking for full compensation for costs during the proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 10

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D. A rejoinder by the 2nd Defendant/Applicant 22. Mr. Mureithi Advocate for the 2nd Defendant/Applicant was a corded an opportunity to make brief rejoinder. He stated that M/s. Ambetsa was the Counsel seized to act for 3rd & 4th Defendants. Therefore, she could not comment on the prejudice to be faced by the 2nd Defendant/Applicant. The Counsel referred Court to the contents of Paragraphs 10 to 16 of the Plaintifi/Respondent’s Replying Afidavit. There was no date of his intention to file the civil suit as alleged. Its admitted they had the cell phone and postal address numbers of the operational manager. He averred that the provision of Orders 5 Rule 22 B of the Civil Procedure Rules, 2010 allowed service by way of electronic device. According to the Counsel, this means of service was not exhausted. The Counsel referred Court to the contents of Paragraphs 10 to 16 of the Replying Afidavit by the Plaintifi/Respondent. It explained how he got the number while in the DCIO ofices; though interacting by the two of Captain Hamisi, but he declined to inform the Plaintifi of the Physical address the 2nd Defendant/Applicant. 23. The Learned Counsel contended that to state that the title held by the Plaintifi was the first to be registered, was an issue to be determined by the court. There was need for these issues to be deliberated adequately through a trial where the 2nd Defendant/Applicant was allowed a chance to participate. It was only this Court that had the legal mandate to cancel or revoke a title. He averred that an oficial search was not proof of ownership of land. 24. The Learned Counsel submitted that from their replies they had not informed court they were seeking for the reconstitution of the Green Card. He reiterated that the 2nd Defendant/Applicant needed to be given time to defend its case. 25. As already indicated above, M/s. Kyalo Advocate informed Court that they would not be opposing the application. VI. Analysis & Determination. 26. I have critically assessed the filed pleadings particularly the Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/Applicant herein, the responses by the Plaintifi/Respondent, the submissions, the relevant provision of the Constitution of Kenya, 2010 and the statures. 27. In order for the Honourable Court to arrive at an informed, reasonable and Equitable decision, it has framed the following four ( 4 ) issues for its determination. These are:a. Whether the Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/ Applicant has any merit whatsoever. b. Whether service of the pleadings were properly efiected upon the 2nd Defendant herein by the Plaintifi/Respondent. c. Whether the delivery of Judgement should be deferred in order to allow the re – opening of the suit and participation of the matter by the 2nd Defendant/Applicant herein. d. Who will bear the cost of the application herein. Issue No. a). Whether the Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/ Applicant has any merit whatsoever. 28. Under this sub – title, the Honourable Court will be examining whether the application by the 2nd Defendant/Applicant herein has any merit or not. In a nutshell, the Applicant sought for orders that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 11

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pending the hearing and determination of this application, the Honourable Court be pleased to review it orders and/or arrest the writing and delivery of the Judgment slated for 2nd July 2025. Further, that the Honourable Court be pleased to set aside the proceedings and grant leave to the 2nd Defendant to defend the suit on the merits by starting the matter “de novo” with the participation of the 2nd Defendant/Applicant herein. 29. As indicated above, the application was anchored upon several grounds. In summary, these were the Depondent as the Legal Oficer of the 2nd Defendant/Applicant was aware the 2nd Defendant/ Applicant was registered proprietor of property title number Kwale/Shimoni ADJ/635 - The suit Property. He was aware that on 9th June 2025, their Operations Manager, Mr. Twalib Khamis was in attendance in Kwale Law Courts for the hearing of Kwale Chief Magistrates Court “Criminal Case Number E277 of 2021: R – Versus - Sahare Kisupi Mwichambe” - the criminal case which surrounded the suit property. 30. The facts of the matter is that the accused person in that case was impleaded herein as the 1st Defendant. While in the court vicinity, their Operations Manager conferred with the prosecutor and the investigation oficer. It was at that point that he learnt that the Plaintifi/Respondent had since filed this suit seeking to cancel the 2nd Defendant/Applicant's title to the property. This revelation was brought to the attention of the Deponent and who quickly laboured to peruse the Court file. 31. The Plaintifi/Respondent recognized that the property was sold to and a title issued to the 2nd Defendant/Applicant herein. Whereas the Plaintifi/Respondent alleged forgery and fraud, the 2nd Defendant/Applicant maintained that it was a bona fide purchaser for value without notice. The 2nd Defendant/Applicant argued that faced with these competing claims, it was important that it was given an opportunity to present its case so that the court could determine which of the titles should be given jural recognition. 32. Contrary to the 2nd Defendant/Applicant's averments at paragraph 2 of their Supporting Afidavit, the Plaintifi/Respondent contended that the 2nd Defendant/Applicant's Title was a forgery having been acquired illegally and fraudulently. Indeed the lands ofice had absolutely no lawful and valid record of the said title and green card. The 1st Defendant fraudulently using forged documents caused the suit property to have a fraudulent parallel Green Card as well as a Title allegedly issued on 5th October 2022 all of which was done with the sole purpose of selling and/or disposing ofi the suit property to the 2nd Defendant/Applicant using forged and fraudulent documents. 33. As a result of the foregoing, the 1st Defendant never had any valid title to pass to the 2nd Defendant/ Applicant as he did not have any title. Instead, all he did was pass a parallel fraudulent Title to the 2nd Defendant/Applicant which Title the Plaintifi/Respondent contended was fraudulent and forged and thus could not pass good title. In support of this assertion, was a Charge Sheet for (Kwale Criminal Case No. E277 of 2021) evidencing that the 1st Defendant had indeed been charged with obtaining land registration by false pretense as well as obtaining money vide false pretense by purporting to dispose ofi the suit property to the 2nd Defendant/Applicant. Annexed hereto and marked as "KM - 1" was a copy of the Charge Sheet. 34. In response to the contents made under Paragraphs 3,4 and 5 of their Supporting Afidavit, the 2nd Defendant/Applicant was merely misleading this Honourable Court into issuing adverse orders which the 2nd Defendant/Applicant was undeserving of. 35. Clearly, the main bone of contention here is on the ownership of the title deed. There two confiicting title deed whereby one is held by the Plaintifi/Respondent on one hand while on the other, the 2nd Defendant/Applicant holds the other. From the proceedings allegations on the title deed having been https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 12

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acquired fraudulently have been raised. Indeed, there exists a criminal case which is on going based on the said allegations. 36. These issues are weighty issues which are line with the need to ascertain the root and the provision of Sections 24, 25, 26 (1) and 80 of the Land Registration Act, No. 3 of 2012 that guaranteed a proprietor hearing and adduction of credible evidence before a Certificate of Title was cancelled on grounds of fraud, misrepresentation or corrupt scheme. 37. I discern that, land being such a sensitive commodity in Kenya as it touches on the source of livelihoods. Guided by the provisions of Article 25 ( c ); 47, 48, 50 ( 1 ) & ( 2 ) and 159 (1) & ( 2 ) of the Constitution of Kenya, 2010; Sections 3 & 13 of the Environment & Land Court Act, No. 19, of 2011 on the principles of natural Justice, Equity, Conscience, fair hearing, need to facilitate the just, expeditious, proportionate and accessible resolution of disputes, it is imperative that parties are accorded an opportunity to be heard. Otherwise, short of that, the 2nd Defendant/Applicant may be condemned unheard which by far outweighs the prejudice that the other parties would sufier should the matter re - start with the 2nd Defendant/Applicant's participation. 38. As a sigh of good faith, I have taken cognizance that the 2nd Defendant/Applicant has demonstrate its bona fide and good faith for its willingness and readiness to pay minimal throw away costs as an elixir for the expense of restarting the case “de - novo”. For these reasons, therefore, I find that the application by the 2nd Defendant/Applicant has merit and needs to be allowed. Issue No. b). Whether service of the pleadings were properly efiected upon the 2nd Defendant herein by the Plaintifi/Respondent. 39. Under this sub – title, the issue of service upon the 2nd Defendant/Applicant with the pleadings summons to enter appearance and the Plaint by the Plaintifi/Respondent. Thorough its application the 2nd Defendant/Applicant have vehemently refuted having been properly served. The claimed to have discovered that the Plaintifi/Applicant filed this suit on 27th September 2022 with the assistance of the advocates on record. They noted that service upon them was done via substituted service by way of newspaper advertisement following the Honourable Court's orders of 30th November, 2022. However, it was unfortunate that they had seen the advertisement published in the newspapers - “the Standard” of the 25th January 2023 edition and “the Daily Nation” of 1st February 2023. While the 2nd Defendant/Applicant never faulted the Honourable Court at all for ordering substituted service by way of advertisement, the 2nd Defendant/Applicant grieved that the Plaintifi/Respondent was not forthright when he deposed that service upon the 2nd Defendant/Applicant was impossible through the usual modes set out under the provision of Order 5 Rule 3 of the Civil Procedure Rules, 2010. 40. Hence, resorting to service by advertisement they argued that the 2nd Defendant/Applicant had always had its registered ofice at Dedan Kimathi Road, Plot No. Msa/Block XXV/49 & 50; Mombasa. That the 2nd Defendant/Applicant's Postal address is P.O. Box 99662, Kilindini. The Plaintifi/Applicant had captured this address in all his pleadings as well as the summons to enter appearance given on 27th September 2022. Further, the Plaintifi/Respondent captured the mobile number 0722 415 087 in his pleadings as well as the summons to enter appearance. That mobile number was operated by Mr. Twalib Khamis, the 2nd Defendant/Applicant's Operations Manage. By failing to demonstrate to the court all due and reasonable diligence he employed in attempts to serve the 2nd Defendant/ Applicant through the usual modes before moving the court for substituted service by advertisement, the Plaintifi/Respondent withheld to the court the assistance contemplated under the provision of Section 1A (3) of the Civil Procedure Act, Cap. 21. They have held that they never saw the advertisement published in the two ( 2 ) newspapers and wondered the Plaintifi/Respondent would not exhausted https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 13

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all the available avenues on service as provided for in law as they were fully aware of their postal address and the cell – phone numbers. 41. From the outset, the Plaintifi/Respondent opposed the said Application in its entirety together with all the corresponding allegations made in the Supporting Afidavit filed alongside the Application and state that the 2nd Defendant/Applicant herein was undeserving of the Orders sought. He claimed to have personally got to meet Mr. Twalib Khamis Ali who was also known by the name Captain Hamisi during the investigations by the Kwale DCI Ofice. It was during that time that the deponent informed him that he would proceed and file a case seeking to cancel the fraudulent title and he did admit that he had been conned of money in the purchase if indeed he still had his father's title. 42. The Plaintifi/Respondent argued that the 2nd Defendant/Applicant knew about this case but chose not to participate in it as shown hereunder. The 2nd Defendant/Applicant's Operation Manager Mr. Twalib Khamis Ali was a witness in the above cited “Criminal Matter (Kwale Criminal Case No. E277 of 2021”). The 2nd Defendant/Applicant in their Supporting Afidavit at Paragraph 4 had admitted that they were aware the Criminal Matter related to the suit property. In fact they were aware that the 1st Defendant was charged with obtaining money by false pretenses from the 2nd Defendant/Applicant. If indeed he was so charged, he could not have had a valid title to sell to the 2nd Defendant/Applicant, neither could he have passed a valid title. 43. Undoubtedly, service of the pleadings were efiected. This Honourabe Court strongly holds that the service was adequately and properly done. It has seen the Afidavit of Service sworn by one Mr. Vincent Mambuya, a Court Process server in accordance with the provision of Order 5 Rule 15 of the Civil Procedure Rules, 2010. Attached and marked as “KM - 2” was a copy of the afidavit of service. 44. Due to those failed attempts at physical service, there was no other choice but for them to file the application for service by substituted means under the provision of Order 5 Rule, 17 of the Civil Procedure Rules, 2010 been an advert in the two daily newspapers. This was done as the Process Server and himself had been unable to trace and efiect service of summons upon the 2nd Defendant/ Applicant's directors for the principal reason that its physical ofices were unknown and efiorts to have Mr. Twalib Khamis Ali A.K.A Captain Hamisi the Operations Manager assist with the information bore no fruits. 45. In view of the fore going, the Court is fully satisfied the 2nd Defendant/Applicant was properly served in accordance with the laid – down provision of the law. Issue No. c) Whether the delivery of Judgement should be deferred in order to allow the re – opening of the suit and participation of the matter by the 2nd Defendant/Applicant herein. 46. As already indicated above, there would be great need to accord the 2nd Defendant/Applicant an opportunity to be heard based on the principles of natural Justice and fair hearing. 47. However, in order to dispense substantive decision, it is reasonable, just, fair and Equitable to balance the scale of justice and the interest of all parties herein. From the record, the Plaintifi’s case and that of the 1st, 3rd and 4th Defendants have already commenced and closed. They are only awaiting for Judgement to have been delivered on 2nd July, 2025. Forward moving and in the fullness of time, three (3) main issues do arise herein as guide to this Court. Firstly, despite of there being proper service, the 2nd Defendant/Applicant opted to ignore the proceedings despite of having a claim over the suit property. They cannot be excused here at all. Secondly, the parties have expended a lot of resources – manhour, finances and time in preparing for the case. It would be extremely prejudicial to re – open the matter to commence a afresh – “de novo”. At least in all fairness, the 2nd Defendant/Applicant has https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 14

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been magnanimous and ofiered to pay some thrown away costs in order to compensate the parties for the expenses incurred. That is encouraging. Finally, luckily, the Judgement scheduled for delivery on 2nd, July, 2025 has now been overtaken by time. 48. Based on the above three (3) consideration, the Honourable Court seeks refugee from the provision of Orders 7, 11 & 18 Rule 10 of the Civil Procedure Rules, 2010 and Section 146 Rule 4 of the Evidence Act, Cap. 80 by allowing the 2nd Defendant to file their Defence and Counter - Claim and other supporting documents within a certain stipulated timeframe, be accorded an opportunity to re – call the witnesses who have testified for cross – examination and examination in Chief by the other parties. Additionally, the 1st Defendant/Applicant will be directed to pay the Plaintifi/Respondent, 3rd & 4th Defendants some reasonable thrown away costs which the Honourable Court has based on the resources expended by the parties and the market value of the suit property altogether. Issue No. d) Who will bear the cost of the application herein. 49. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 50. In the present case, although the application by the 2nd Defendant/Applicant is partially successful, but in the given circumstances, the Honourable Court finds it reasonbale and just to award the Plaintifi/ Respondent, 3rd & 4th Defendants/Respondents herein costs for the application. VII. Conclusion & Disposition. 51. Ultimately, having caused an indepth analysis to the framed issues herein, the Honourable Court based on the Principles of Preponderance of Probabilities and the balance of Convenience arrives at this conclusion and grants the following specific orders. These are:a. That the Notice of Motion application dated 20th June, 2025 by the 2nd Defendant/Applicant found to be meritorious and hence be and is hereby allowed as prayed subject to the fulfilment of the Pre – conditions stipulated herein below. b. That the scheduled delivery of Judgement in this matter be and is hereby deferred until the matter is heard by the participation of the 2nd Defendant/Applicant herein. c. That the 2nd Defendant/Applicant be granted 21 days leave to file and serve their Statement of Defence and Counter – Claim in accordance with the provision of Order 7 of the Civil Procedure Rules, 2010 as per the attached annexture marked as “JM – 6” attached to the Supporting Afidavit of Joseph Mwella, the 2nd Defendant/Applicant Operations manager sworn and dated 20th June, 2025. d. That thereafter upon service, the Plaintifi/Respondent herein granted corresponding 21 days leave to file and serve replies to the Defence and Defence to the Counter – Claim and any https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 15

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further document responding to any new issues raised from the filed pleadings by the 2nd Defendant/Applicant herein. e. That there be a Pre – Trial Conference conducted on 8th December, 2015 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010 and a hearing on 25th March, 2026 on priority basis f. That in accordance to the provision of Articles 25 ( c ), 48, 50 ( 1 ) & ( 2 ), 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, Sections 3 & 13 of the Environment & Land Court Act, No. 19 of 2011; Section 146 ( 6) of the Evidence Act, Cap. 80 and Order 18 Rule 10 of the Civil Procedure Rules, the 2nd Defendant/Applicant herein to be at liberty to recall any of the witnesses by the Plaintifi/Respondent, 1st and 3rd Defendant/Respondents who have already tendered their testimonies in the matter for Cross – Examination and Re – Examination as provided for in law. g. That the 2nd Defendant/Applicant directed to pay the Plaintifi/Respondent and 3rd Defendant/Respondent herein a sum of Kenya Shillings Four Hundred Thousand (Kshs. 400, 000/=) as thrown away costs as an elixir for the expenses of re – opening the case and enabling the participation of the 2nd Defendant/Applicant in the matter whatsoever Within The Next Thirty (30) Days from the date of this Ruling. h. That in default to compliance to the directions provided herein the Notice of Motion application dated 20th June, 2025 shall stand dismissed automatically by efiusion of time. i. That cost of the application to be borne by the 2nd Defendant/Applicant to be awarded to the Plaintifi/Respondent and the 3rd & 4th Defendants/Respondents herein. It is so ordered accordingly RULING DELIVERED THROUGH THE MICRO – SOFT TEANS VIRTUAL MEANS, SIGNED AND DATED AT KWALE ON THIS 14TH DAY OF OCTOBER 2025. …………………………… HON. MR. JUSTICE LL. NAIKUNI ENVIRONMENT & LAND COURT AT KWALE Ruling delivered in the presence of:a) Mr. Daniel Disii, the Court Assistant. b) Mr. Mutemi Advocate holding brief for Mr. Thimba Advocate for the Plaintifi/Respondent. c) No appearance for the 1st Defendant/Respondent. d) Mr. Mureithi Advocate for the 2nd Defendant/Applicant. e) M/s. Ambesta Advocate for the 3rd & 4th Defendants/Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7583/eng@2025-10-14 16

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