Opiyo v Rotino (Environment and Land Case E028 of 2025) [2025] KEELC 8462 (KLR)

7. The defendant deposes that he had a brief relationship with the plaintifi and was blessed with one child before the relationship stopped, after she became a nuisance to his life, as per attached demand letters annexed as PRR-(1). 8. The defendant deposes that upon the demise of his wife, the plaintifi forcefully moved into the matrimonial home without his consent or authority, and it took the intervention of the community to force her out of the matrimonial home. 9. The defendant deposes that he is sufiering from diabetes, kidney diseases and mil dementia, conditions which have bene exacerbated by the passing of his wife and therefore there is a possibility that he could have been forced to append his signature or thumb print on documents without his knowledge or recollection as per attached medical reports marked PRR-(2) and a certificate as a person with disability marked PRR-(3). 10. The defendant deposes that he neither entered into any memorandum of understanding with the plaintifi nor did he undertake to transfer any parcel of land to her, subject to commencing succession proceedings in respect of his late father’s estate. 11. The defendant deposes that the memorandum of understanding referred to by the plaintifi is a forgery, as he was not aware of the same, nor did he afix his thumbprint on the said document; otherwise, he has made a report to the police as per annexure marked PRR-(4). The defendant deposes that he never entered into any loan agreement or received Kshs. 27,000,000/= from the plaintifi or ofiered any of the suit premises as security or collateral to any loan or debt. 12. The defendant deposes that from the foregoing, the plaintifi approached this court and obtained ex parte orders based on falsehood and misrepresentation with unclean hands. 13. The defendant deposes that as of 30/6/2025, when this application was filed he had already leased out a portion measuring 70 acres of the Chepchoina Settlement Scheme Phase 1 to one Joseph Njenga for a period of 5 years as per annexure PRR-9(a) and (b), on top of selling approximately 52 acres to Jackson Maiywa Moiben, leaving a portion measuring 62.55 acres to his daughter as per annexures marked PRR-6(a) and (b). 14. The defendant deposes that the orders issued on 6/10/2025 are already overtaken by events, have no real impact, are moot, are academic, and of no practical efiect. Further, the defendant deposes that the said orders shall have adverse efiects on third parties who are not parties to these proceedings, with no opportunity to be heard. 15. The defendant deposes that he stood to sufier real and substantial loss if the application is not heard expeditiously and the orders discharged or varied; otherwise, there will be no prejudice occasioned to the plaintifi if the reliefs sought are granted. 16. The application is opposed through a replying afidavit sworn by Elizabeth Judy Opiyo on 10/11/2025, for lack of merit and as an abuse of the court process since the defendant was duly served with the pleading vide his undisputed email address rotinophilip3@gmail.com, going by the afidavit of service attached as EJO-(1). 17. The plaintifi denies the allegation in paragraphs 11, 12, and 13 of the replying afidavit on any alleged disturbances or force acts to append his signature or thumbprint on documents without his knowledge. 18. On the contrary, the plaintifi deposes that the defendant voluntarily appeared before M/S Fancy Chebet Ngetich Advocates at Katina & Co. Advocates, who were their instructed advocates to execute https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8462/eng@2025-12-03 2

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a memorandum of understanding dated 26/11/2024, including giving the details of the amount owed and the parcel numbers, since she was not privy to such information, in which the defendant acknowledged owing Kshs. 27,000,000/= and undertook to transfer the land to her. 19. Further, the plaintifi denies being summoned by the police or the Directorate of Criminal Investigations regarding the alleged forgeries. The plaintifi deposes that she came to court because the defendant became evasive in implementing the terms of the memorandum of understanding, and after she discovered that he owns parcel No. 298, Chepchoina Settlement Scheme Phase 1. The plaintifi denies that she relied on any falsehood or misrepresentation of facts in obtaining the interim orders. 20. The plaintifi terms the alleged lease and sale agreements contained in paragraphs 20 and 21 of the supporting afidavit as fiction and means to defeat the cause of justice. 21. The plaintifi denies that the interim orders had been overtaken by events; otherwise, the so-called third parties have not sworn any afidavit to verify the existence of the alleged lease or sale agreements. 22. Again, the plaintifi denies that the defendant could sufier any real or substantial loss as pleaded without the variation of the interims orders, since he had an opportunity to oppose the application but chose not to do so; otherwise, the present application is an afterthought. 23. The plaintifi relies on written submissions dated 11/11/2025. Reliance is placed on the Court of Appeal Civil Appeal No. E007 of 2022 that Order 5 Rule 22B of the Civil Procedure Rules service of court processes through electronic email is legal, and in this case, there is an afidavit of service confirming there was an electronic mail service delivery receipt to his email, which he has not disputed ownership of. 24. Order 40 Rule 7 of the Civil Procedure Rules provides that an order for an injunction may be discharged, varied, or set aside by the court on an application made thereto by any party dissatisfied with such an order. 25. In Madhyan -vs- Wema Transporters & 4 others (Civil Appeal E787 of 2021) [2025] KECA 1152 (KLR) (20 June 2025) (Judgment), the court cited Mrao Ltd -vs- First American Bank of (K) Ltd & Others [2003] KECA 1175 [KLR], that the definition of prima facie case underscores the importance of substance over forum, the judicial task being to interrogate whether the facts disclose an arguable right deserving protection, other than merely to recite the phrase “prima facie case”. 26. The court said that the right of a registered proprietor under Section 26(1) of the Land Registration Act is protected unless it is shown that the title was acquired through fraud or misrepresentation. 27. In Baha Durali Ebrahim Shamji -vs- Ah Noor Jamal & Others [1998] eKLR, the court observed that a litigant who obtains ex parte orders must not withhold material facts which might infiuence the court’s decision, and if he does, the court is entitled to discharge the order even if the omitted facts would not have led to a difierent result. 28. The jurisdiction to vary, set aside, or discharge an interim order is discretionary. In Ragai -vs- Barclays Bank of Kenya [2002] I KLR 647, Ringera J, as he then was, said that if an interlocutory injunction has been obtained by means of misrepresentation or concealment of material facts, the same would, on an application of the party aggrieved, be discharged. 29. In considering whether there has been relevant non-disclosure and what the consequence are the court should attach to any failure to comply with the duty to make full and frank disclosure, the court in Coast Apparel EPZ Limited -vs- Mtwapa EPZ Limited & Another [2017] KEHC 4025 (KLR), observed that the duty of disclosure applies not only to material facts known to the applicant, but also to any additional facts, which he would have known if he had made such inquiries. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8462/eng@2025-12-03 3

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30. The court said that an ex parte applicant who fails to make full disclosure is deprived of any advantage he may have derived by that breach of duty and that whether or not the fact not disclosed is of suficient materiality to justify or require immediate discharge of the order, without the examination of the merits, depends on the importance of the fact to the issues which were to be decided by the judge on the application. 31. The court said that whether the non-disclosure was innocent, its knowledge by the applicant was an important consideration, but not decisive; otherwise, not every non-disclosure of facts justifies or requires the immediate discharge of the ex parte order. 32. In Hasmo Agencies Limited -vs- National Social Security Fund (Land Case E052 of 2023) [2025] KEELC 140 (KLR) (23 January 2025) (Ruling), the court said that it is trite that a party who appears before a court has a duty to disclose all material facts. 33. In this suit, the plaintifi in the plaint dated 30/6/2025 and the application dated 30/6/2025 did not disclose the context of the memorandum of understanding and the close relationship she had with the defendant. In the reply to the defence and defence to the counterclaim dated 11/11/2025, she now terms the allegations as outrageous, malicious, and that she did not commit such acts. The defendant attacks the legality and the proprietary of the memorandum of understanding. 34. The plaintifi does not deny in the replying afidavit to this application that she had a close relationship with the defendant, which formed the basis of the alleged memorandum of understanding. 35. Order 2 Rules 3, 4, 5, and 6 of the Civil Procedure Rules relate to material facts to be pleaded before the court. The plaintifi did not disclose that she had been in a relationship with the defendant, culminating in the signing of the alleged memorandum of understanding. Annexure marked PRR-(1)-6(a) and (b) have not been disputed by the plaintifi. 36. The plaintifi relies solely on letters dated 4/6/2025, 22/2/2008, and an allotment letter dated 14/8/2009 as the basis to obtain an interim injunction. The plaintifi received the letter dated 6/3/2025 denying her any attempts to forcefully enter into any of the defendant’s properties without consent, permission, or authority. The letter was clear that the invasion of the defendant’s private space after his wife passed on was unwarranted, intolerable, unjustified, and that it had caused the defendant and his family great emotional and mental anguish. 37. Material facts under Sections 8 and 16 of the Evidence Act refer to facts relating to motive, preparation, and conduct, and referring to a common intention, existence of a right or custom, state of mind or feeling, showing a system, course of business. The plaintifi did not disclose the nature of the relationship with the defendant, which, in my view, was material. 38. In Mary Nyambura Kangara -vs- Paul Ogari Mayaka SC Petition No 9 of 2021, the court held that though marriage has a traditional, religions, economic, social and cultural meaning, it is becoming increasingly common for love consenting adults to live together for long durations with no desire or intention to be within the confines of matrimony, which is an independent relationship outside marriage. 39. In DAW -vs- EFNA & Another Civil Appeal E035 of 2023 [2025] KECA 1844 [KLR] (7th November 2025) (Judgment), the court said that Section 2 of the Land Act defines what a matrimonial home and that whoever claim beneficial interest or contribution or entitlement in a matrimonial home has to prove the central plank of the proposition he has put forward, that he was the source of the whole or a very substantial portion of the purchase price. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8462/eng@2025-12-03 4

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40. The plaintifi is raising proprietary interests to the land based on a memorandum of understanding, without disclosing the context of such memorandum of understanding, out of which the defendant now discloses was an unwelcome intrusion into his private space after the demise of his wife. 41. The context in which the order was issued, given the statement of defence and counterclaim, has been challenged, as the plaintifi obtained the order without material disclosure and has, as a result tremendous impact on not only the defendant but also other third parties in occupation of the suit property. 42. As much as the defendant does not deny service of summons to enter appearance under Order 5 of the Civil Procedure Rules, the power to set aside ex parte orders is a discretion. In Wachira Karani (supra), the court said that the reasons for not attending court must be considered, especially where there is suficient cause shown. 43. Suficient cause, as held in Shah -vs- Mbogo & Another [1967] E.A, depends on the circumstances of each case. The purpose of exercising discretion is to avoid abuse of the court and to avoid unjust or ridiculous results. The main role of the court, as held in Patel -vs- E.A. Cargo handling Services Ltd (1974) E.A. 75, is to do justice to the parties, and where the interests of justice show that a defaulting party had a sound reason, he should be given a hearing. The defendant has availed a report showing his medical conditions and how they may have afiected his access to the email. He has also moved to court promptly to file the defence and counterclaim, as well as this application. 44. I do not think he fits a description of one out to derail or obstruct the cause of justice, or one who acted negligently or carelessly. See Wachira Karani (supra). 45. Suficient cause is a question of fact and is not a straitjacket formula of universal application. The defendant has demonstrated the injustice or hardship the order is causing to him and third parties. The court’s discretion, as held in Richard Ncharpi Leiyagu -vs- Independent Electoral Boundaries Commission & 2 others [2013] KECA 282 (KLR), aims at avoiding hardship or injustice resulting from an excusable mistake or error to a person who is not out to obstruct or delay the course of justice. See also CMC Holdings Ltd -vs- James Mumo Nzioki [2004] eKLR. 46. I find the applicant deserving of the orders sought. The orders of temporary injunction issued by a ruling dated 24/9/2025 are hereby set aside with no order as to costs. 47. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF DECEMBER 2025. HON. C.K. NZILI JUDGE, ELC KITALE In the presence of: Court Assistant – Dennis Arunga for the plaintifi present Chumba for the defendant for present https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8462/eng@2025-12-03 5

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