Peter v Muia & another (Environment and Land Case E043 of 2021) [2025] KEELC 8193 (KLR)

5. That this Honourable Court do issue a mandamus order compelling the Government Surveyor in charge of Mukaa Sub-County to redraw the boundaries between LR Makueni/ Kiou/1688 and LR Makueni/Kiou/1689 in the presence of the parties in this case herein. 6. That costs be provided for. 3. The application is premised on the grounds appearing on its face together with the supporting afidavit sworn by Josephine Zula Muia of even date. 4. The Applicant averred judgement was delivered against her by this Court on 7th December, 2022. She further averred that she was not served with summons to enter appearance or the suit papers by the Plaintifi and only came to learn of the case on 11th September, 2024 when she visited the court registry. The Applicant averred that she does not dispute the decree in terms of order number one. However, she contended that orders 2 and 3 of the decree are harsh and punitive. She deponed that she was not given an opportunity to be heard as per the rules of natural justice. 5. Opposing the application, the Plaintifi/Respondent filed a replying afidavit sworn by herself on 27th May, 2025. She averred that the 1st Defendant was duly served with summons to enter appearance, plaint, witness statement and a list of documents. She added that the 1st Defendant elected not to participate in these proceedings and the matter proceeded to formal proof hearing. 6. The Respondent contended that she would be prejudiced if the application is allowed as the Applicant intends to deny her from enjoying the fruits of judgment. She urged the court to dismiss the application with costs. 7. The application was canvassed by way of written submissions. 8. In the Applicant’s submissions dated 3rd June, 2025, Counsel identified three issues for determination namely: a. Whether there was a validly and unambiguous executed contract of a sale of land between the parties; b. Whether there was a consent by the Land Control Board of the local area; c. Whether the Applicant has established a prima facie case on the even application against the Plaintifi/Respondent. 9. Submitting on issue c), Counsel contended that the Applicant was not served with the suit papers which was a violation of Section 20 of the Civil Procedure Act. It was further contended that the default judgment obtained by the Plaintifi gave her undue advantage as the Applicant was condemned unheard. 10. Counsel relied on the decision of the court in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR to buttress the submission that the Applicant had established a prima facie case with regards to prayer number two of the application. 11. The Plaintifi/Respondent did not file her submissions in respect of the instant application. 12. After perusal of the application, the replying afidavit and the Applicant’s submissions, the sole issue for determination is as follows: a. Whether the judgment delivered on 7th December, 2022 and the subsequent decree ought to be set aside? https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8193/eng@2025-11-27 2

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13. The court is vested with unfettered discretion to set aside ex parte judgment and such discretion must be exercised judiciously. The governing provisions on setting aside a judgment which has been entered in default of defence are spelt out under Order 10 Rule 11 of the Civil Procedure Rules, 2010 outlines as follows: ‘Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.’ 14. Being a discretionary power, the Court of Appeal observed as follows in CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR with regard to the setting aside of ex-parte orders: “ Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not sufier injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would in our mind be wrong in principle.” 15. The Court of Appeal went on further to state as follows: “ The law is now well settled that in an application for setting aside ex parte judgment, the court must consider not only reasons why the defence was not filed or for that matter why the Applicant failed to turn up for hearing on the hearing date but also whether the Applicant has reasonable defence which is usually referred to as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues. 16. In Shah v Mbogo [1967] EA 116 at 123B Harris J, judiciously held as follows:“ This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 17. Similarly, in Patel v EA Cargo Handling Services Ltd [1974] 1 EA 75 (CAM) the Court of Appeal aptly held thus: “ The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgment as is the case here the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan, J. put it “a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication.” 18. The record shows that the 1st Defendant was personally served with summons to enter appearance together with the plaint and witness statements on 14/01/2022. The record further shows that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8193/eng@2025-11-27 3

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Ali Simba Kalii, a duly licensed court process server filed an afidavit of service on 25/01/2022. At paragraph 5 of the said afidavit of service, the deponent averred as follows: “ The 1st Defendant accepted service but declined to sign arguing that she had not been requested for transfer by the Plaintifi and furthermore she had signed the sale agreement…” 19. Interestingly, in her supporting afidavit to the instant application, the Applicant advanced a similar argument at paragraphs 3 and 15. She averred that indeed she had executed a sale agreement with the Plaintifi and that she did not refuse to transfer the 4½ acres sold to the Plaintifi. She cited the Plaintifi’s uncooperativeness and unavailability when required to go before the Land Control Board as required. 20. From the foregoing, it is inconceivable that that the grounds being advanced by the Applicant now in support of the application were somehow known by the court process server at the time of service. How else would the court process server have known the context surrounding the 1st Defendant’s failure to transfer the suit property to the Plaintifi if they had never come into contact? 21. The argument that the 1st Defendant was not served with court process is therefore implausible and the subsequent entry of interlocutory judgment on 21/03/2022 was regular and procedural. 22. It is also apparent from the annexures presented in support of the application that a draft statement of defence is glaringly missing. Again, it is also evident that the application herein was made after two years and four months after final judgment. 23. Regarding issues a) and b) of the Applicant’s submissions, which are tied to prayers 3, 4 and 5 of the application, it is noteworthy that this court duly delivered a decision on the issues regarding ownership of the suit property in the final judgment dated 7th December, 2022. It is therefore inappropriate to reopen the dispute on the substantive issues of whether there was a valid contract or whether consent of the Land Control Board was issued because the court is already functus oficio. 24. The above position was endorsed by the Court of Appeal in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR where the Court observed as follows:“ It seems clear to us that the appellant, in basing his review application on the failure by the Court to apply the law correctly faulted the decision on a point of law. That was a good ground for appeal but not a ground for an application for review. If parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus oficio and have no appellate jurisdiction. The power to review decisions on appeal is vested in appellate courts.” 25. Accordingly, after thorough analysis of the application, it is clear that the Applicant has not present any arguable defence which can necessitate the court’s exercise of discretion for setting aside the judgment and decree in her favour. No other suficient cause has been demonstrated for an award of the orders which were sought. 26. In the end, the application herein is devoid of merit and accordingly it is dismissed with costs to the Respondent. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8193/eng@2025-11-27 4

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........................................... HON. E. O. OBAGA JUDGE In The Presence Of: Mr. Mutiso for Applicant Mr. Munyasya for Respondent. Court assistant – Steve Musyoki 43 OF 2031 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8193/eng@2025-11-27 5

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