Maina v Mundia & another (Enviromental and Land Originating Summons 1003 of 2005) [2025] KEELC 7783 (KLR)

children were served with the application dated 18th September 2024 filed herein, following which he learnt that a judgment was entered in the matter, which he contends is an irregular judgment as it was obtained on material non-disclosure and concealment of facts as the 2nd Defendant was never served with pleadings and summons to enter appearance, in contravention of his constitutional right to be heard. 3. He contends that the 2nd Defendant was the registered owner of Nyandarua/ Olaragwai /1951, hereinafter referred to as the ‘suit land’, as per copy of title deed in favour of Gachu Mutema, which he annexed. Further, that he has lived on the suit land uninterrupted for over twenty (20) years. He reads mischief in that the Plaintifi pleaded in her Originating Summons that she has had open uninterrupted use of the suit land for more than twenty (20) years, yet she now seeks an eviction order. Further, that he is apprehensive that the Plaintifi may execute against the Defendants any time from now and urges the Court to give him an opportunity to defend the suit. 4. The application is opposed by the Plaintifi who filed a replying afidavit. She contends that 2nd Defendant’s application is unmerited since the 2nd Defendant was duly served with pleadings and they filed a replying afidavit but ignored to attend Court to give evidence. Further, that the application has been brought late and no credible explanation has been given. She objects to transfer of the matter to Engineer Law Courts for reasons that the suit was heard and determined in Nairobi where she resides. She also objects to the prayer for stay of execution on the basis that it shall delay the matter unnecessarily. 5. vide her Notice of Motion dated 18th September 2024, the Plaintifi seeks the following Orders: a. Spent. b. That the Court be pleased to issue an eviction order to evict the Defendants, their agents and or any person encroaching on the suit land LR No. Nyandarua/Olragwai /1591. c. That the OCS Murungaru police station and area chief Kambata location do oversee security in enforcing the Court order of eviction. d. That any person resisting the eviction be arrested by the police. e. That the cost of this application be paid by the Defendants. 6. The application is premised on grounds on its face and on the Plaintifi’s supporting afidavit. She avers that pursuant to this Court’s Decree issued on 23rd September 2016, the Chief Land Registrar was directed to rectify the register for the suit land to be in the name of Gibson G. Maina and the said Decree has not been appealed against. Further, pursuant thereto, the 1st and 2nd Defendants were served with an eviction notice dated the 8th June 2023, under the Land Act but they have refused to vacate the suit land. To this end, she annexed the process server’s afidavit of service dated the 6th July 2023. 7. The application is opposed by the 2nd Defendant vide the replying afidavit of Joseph Mbatia Gachu, a co-administrator of the estate of the late Gachu Muchema. He avers that the Plaintifi has sued the wrong parties in a bid to defeat justice, thus judgment herein was fraudulently acquired as the Plaintifi failed to disclose the proper parties before the Court. Further, that the beneficiaries of the estate of Gachu Muchema (deceased) have been in continuous occupation of the suit land since 1964. 8. The two instant applications were jointly canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7783/eng@2025-11-12 2

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Submissions 9. With regard to the application dated 18th September 2024, the Plaintifi submits that she ought to be granted an eviction Order against the Defendants having obtained final judgment and demonstrated their continued illegal occupation of the suit land, despite the Decree issued herein. 10. On the application dated 16th December 2024, the Plaintifi reiterates that judgement was enter after the Court satisfied itself that the Originating Summons herein had been properly served and that the 2nd Defendant, despite service of the hearing notice, failed to attend court. She also reiterates her objection to the granting of an Order of Stay of execution as well transfer of this suit to Engineer Law Courts. 11. To buttress her averments, she relied on the following decisions: Shah v Mbogo & another [1967]EA 116; Ivita v Kyumbu [1984] KLR 441; Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR; Esther Wamaitha Njihia & 2 others v Safaricom Ltd [2014] eKLR; James Kanyiita Nderitu & another v Marios Philota Ghikas & another [2016] eKLR; Kenya Power & Lighting Company Ltd v Benzene Holdings Ltd t/a Wyco paints [2016] eKLR and Mbaki & others v Macharia & another [2005]2 EA 206. 12. The 2nd Defendant submits that he is a stranger to the proceedings yet the attached Letters of Administration indicate that he was the legitimate administrator and ought to have been served with pleadings herein. Further, that setting aside the judgement entered herein would not prejudice the Plaintifi as the Defendants have a constitutional right to be heard. He also submits that his intended defence raises triable issues as their patriarch has lived on the suit land, since after independence. The 2nd Defendant also cites Section 12 of the Civil Procedures Act to submit that since the suit land is located at Murungaru location, Kinangop Constituency in Nyandarua County, access to justice demands that the case be transferred there. 13. To support his averments, he relied on the following decisions: Pithon Waweru Mina v Thuka Mugiria [1983] eKLR.Matex Hospital Supplies Limited v Kenya Ports Authority [2015] eKLR. Analysis and Determination 14. Upon consideration of the two instant Notice of Motion applications including the respective afidavits and rivalling submissions, the following are the issues for determination:Whether judgement issued in the matter on 7th October 2014 should be set aside and the 2nd Defendant be allowed to defend the suit and if this suit should be transferred to Engineer Law Courts.Whether the Defendants’ should be evicted from the suit land. As to whether judgement issued in the matter on 7th October 2014 should be set aside and the 2nd Defendant be allowed to defend the suit and if this suit should be transferred to Engineer Law Courts. 15. The 2nd Defendant urges this Court to set aside its judgement of 7th October 2014 on the basis that it is irregular, since service of summons to enter appearance was not efiected upon them. The Plaintifi on the other hand insists that summons to enter appearance were served and that the 2nd Defendant filed a replying afidavit to the Originating Summons. For that reason, she seeks an eviction order against the 2nd Defendant. 16. The application to set aside judgement is filed by Joseph Mbatia Gachu, who claims to be a coadministrator of the estate of the late Gachu Muchema. In its judgment dated 7th October 2014, the Court noted that both Defendants had filed replying afidavits in the suit. The record indicates that Grace Waithera Gachu filed a replying afidavit sworn on 10th December 2009. Joseph Mbatia Gachu https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7783/eng@2025-11-12 3

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now claims that the said Grace Waithera Gachu was not a proper party thus judgement was irregularly entered. 17. On the description of an irregular judgement, the Court of Appeal in James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR stated thus: “ …in an irregular judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiciae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular, it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue.” 18. In Anjeli Limited v Kenga Simba & 12 others; Chengo Omar & 19 others (Intended Interested Parties) [2021] eKLR, it was held that: “ If a party is properly served and opts not to come to court, he can have nobody but himself to blame when judgment is entered against him. Nobody should shun a court proceeding thinking that they will automatically get an order for setting aside the judgment.” 19. From the Court record, I note the 2nd Defendant in the replying afidavit of the 11th December, 2009, the deponent stated that Gachu Muchema (deceased) was her late husband. Further, she even explained that her late husband acquired the suit land from John Kamau Wainaina. She even admitted that her husband died on 22nd December, 2002 before judgement in Naivasha RMCC No. 107 of 1987 was quashed by High Court in High Court vide Misc Application No. 265 of 1994. Further, I note at that point the 2nd Defendant was even represented by messrs G. Kamonde Advocate. 20. It is trite that for a judgement to be set aside and the Defendant allowed to defend the suit, there has to be proof that there was no service and the Defence should raise triable issues. At this juncture, I find that the 2nd Defendant was properly served with summons to enter appearance and filed a response and that the judgement entered herein was hence regular as the said suit was defended. I opine that the 2nd Defendant is not being candid as they chose to ignore the proceedings herein and now cry foul. Further, I note that the 2nd Defendant had even been served with eviction notices on 8th June, 2023 as per the Land Act, but chose to ignore it and now filed the instant application after an inordinate delay, without providing any credible explanation or suficient cause for the said delay. 21. In the foregoing, while associating myself with the decisions cited, I find that the judgement issued herein on 7th October 2014 is valid and decline to set it aside. I will further decline to transfer the matter to Engineer Law Courts as this matter is concluded and is at the execution stage. As to whether the Defendants should be evicted from the suit land. 22. The Plaintifi has sought for an eviction order as against the Defendants. The 2nd Defendant contends that the Plaintifi has sued the wrong parties in a bid to defeat justice, thus judgment herein was fraudulently acquired as the Plaintifi failed to disclose the proper parties before the Court. Further, that the beneficiaries of the estate of Gachu Muchema (deceased) have been in continuous occupation of the property since 1964 and it is their constitutional right to defend this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7783/eng@2025-11-12 4

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23. I wish to reproduce an excerpt from the impugned judgement here below: “ …In the meantime, Gachu Muchema sold the 4.5 acres which were reverted back to him to the 1st Defendant. The 1st Defendant was issued with a title number Nyandarua/ Olaragwai/1591 on 31st January, 1996 with respect to the said 4.5 acres, which is the subject matter of this suit. The Plaintifi is seeking an Order for rectification of the register in respect to the 1st Defendant’s title number Nyandarua/ Olaragwai/ 1591, cancellation of the 1st Defendant’s title in the suit land and registration of the suit parcel in her name………………..The 1st Defendant on other hand has contended that he is an innocent purchaser for value without notice.………..In my view, the Plaintifi is entitled to the order of rectification sought since no appeal was lodged to challenge the decision in Nairobi High Court Misc. Case No. 265 of 1994 that quashed the Senior Resident Magistrate’s Court decision to hive ofi 4.5 acres from the Plaintifi’s property." 24. From this excerpt alone, it is evident the Court found that the Plaintifi is entitled to Nyandarua/ Olaragwai/ 1591. Further, I note the Deputy Registrar already executed the Transfer Forms for Nyandarua/ Olaragwai/ 1591, in favour of the Plaintifi. In my view, I find that the Plaintifi is entitled to enjoy the fruits of her judgement and the 2nd Defendant or the agents should not be allowed to block the Plaintifi from the suit land. In the foregoing, I find that eviction orders should hence issue. 25. In the circumstances, I find the 2nd Defendant’s Notice of Motion dated the 16th December 2024 unmerited and will dismiss it with costs. I find the Plaintifi’s application dated the 18th September, 2024. merited and allow it in the following terms: a. An eviction order is hereby issued to evict the Defendants, their agents and or any person encroaching on the suit land LR No. Nyandarua/Olaragwai /1591. b. That the OCS Murungaru police station and area chief Kambata location do oversee security in enforcing the Court order of eviction. c. The costs of this application is awarded to the Plaintifi. DATED SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF NOVEMBER, 2025 CHRISTINE OCHIENG JUDGE In the presence of: Wanjohi for Plaintifi Joseph Mbatia Gachu and Solomon Njehu Gachu in person Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7783/eng@2025-11-12 5

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