Dazzler Properties Limited v Njuguna & 2 others; Co-operative Bank of Kenya Limited & another

dated 5th March, 2025 and further the court do give directions as to the hearing of the matter expeditiously. 5. That the applicant/respondent draft replying adavit sworn on the 8th October, 2025 annexed hereto to the supporting adavit be deemed as duly led out of time and served upon payment of the requisite fees, if any. 6. That this honourable court be pleased to issue any other orders it may deem just and expedient in the interest of justice and fairness. 7. Costs be in the cause. 2. The application is premised on the grounds on its face, and further in the supporting adavit of the 1st defendant/applicant sworn on even date. The 1st defendant/applicant deposed that she recently received a court alert message that a ruling date had been scheduled on 13th October, 2025 on a notice of motion dated 5th March, 2025. She added that she immediately called her advocate, Mr. Mburu, who conrmed that he had only received a plaint and other court papers other than the notice of motion dated 5th March, 2025 stating that he was not aware of any ruling that was set to be delivered. 3. The 1st defendant/applicant further deposed that she instructed the rm of Ochoki & Ochoki Associates who checked on the Court Tracking System (CTS) only to conrm that the rm of Suyianka Lempaa & Co. Advocates had led a notice of appointment dated 26th March, 2025 purporting to be acting for her. The deponent insisted that she had never appointed the said law rm and that she did not even know where their oces were located. 4. The 1st defendant/applicant contended that the plainti/respondent has lied under oath that she is in possession of the suit property while also presenting forged title documents. She further contended that the plainti/respondent will not suer any prejudice if the prayers sought are granted. She added that she stands to be condemned unheard contrary to the rules of natural justice when she intends to prove that the plainti/applicant has presented before the court forgeries that will mislead the court on the status of the suit property. 5. The application was opposed vide the replying adavit of the plainti/respondent’s Director, Peter Kiarie Muraya, sworn on 29th October, 2025. The plainti/respondent deposed that the 1st defendant/ applicant was served with its application on 10th March, 2025 via email and an adavit of service was sworn by Antony Mundia on 14th March, 2025 to that eect. That again, the 1st defendant/applicant was served with a mention notice and a letter via email on 21st March, 2025 and an adavit of service was sworn by Antony Mundia on 27th March, 2025 to that eect. 6. The 1st plainti/respondent contended that on 24th March, 2025, the process server again served the notice of motion dated 5th March 2025 upon the rm of Kago Mburu & Associates who conrmed that they had instructions from the 1st defendant/applicant to accept service. It was further deposed that the 1st defendant/applicant was given sucient opportunity to respond to the application but failed to do so. Further, that the 1st defendant/applicant had not demonstrated any exceptional circumstances under which the court could arrest the scheduled ruling. It was suggested that if the 1st defendant/ applicant was to be aggrieved by the court’s ruling, then the appropriate remedy would be to seek review. 7. The 1st plainti/respondent deposed that it has been deprived of the use and enjoyment of the suit property by the 1st defendant/applicant and will suer extreme prejudice noting that the scheduled https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18445/eng@2025-12-19 2

page 2 of 5

ruling has been adjourned more than three times. He urged the court to dismiss the application with costs. 8. The application was canvassed by way of written submissions. By the time of writing this ruling, the plainti/respondent and the 1st defendant/applicant had not led their written submissions. While the 1st interested party did not le a response to the application, it led its written submissions dated 9th December, 2025. The 1st interested party submitted that it would rely on the replying adavit of the plainti/respondent. In its submissions, two issues were raised for determination as follows: a. Whether the 1st Defendant was served with the Plainti’s application dated 5th March, 2025? b. Whether the 1st Defendant is entitled to the equitable remedies sought? 9. Submitting on the rst issue, the 1st interested party contended that proper service of the application dated 5th March, 2025 was eected on the 1st defendant/applicant as per Order 5 of the Civil Procedure Rules. Further, that the instant application is based on falsehoods and that it is a clear attempt to waste judicial time. 10. On the second issue, it was submitted that the 1st defendant/applicant had not fullled the considerations which can allow the court to grant the application, and that she has come to court with unclean hands and was undeserving of the court’s discretion. Urging the court to dismiss the application with costs, it was submitted that no satisfactory reasons had been advanced. 11. After a careful perusal of the application, the replying adavit and the 1st interested party’s submissions, the sole issue for determination is whether the court should grant the 1st defendant/ applicant leave to le a replying adavit to the application dated 5th March, 2025 out of time. 12. Enlargement of time is a discretionary power vested with this court in accordance with the provisions of Section 95 of the Civil Procedure Act which outline as follows: “ Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired.” 13. The principles to be considered in an application for extension of time were laid out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as follows:“ …it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. This being the rst case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion: 1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18445/eng@2025-12-19 3

page 3 of 5

14. 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there will be any prejudice suered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay;…” 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 suer 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 led 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 led 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. The 1st defendant/applicant explained her reason for not ling a replying adavit to the plainti’s application as being that her advocates Kago & Mburu were not served with the same. The 1st defendant/applicant also denounced the fact that she had instructed the law rm of Suyianka Lempaa & Company advocates to represent her in these proceedings by virtue of the notice of appointment dated 26th March, 2025. 18. She contended that thereafter, she instructed the rm of Ochoki & Ochoki Associates to le a notice of change of advocates which they did on 19th August, 2025. It is her case that she will be condemned unheard in the event that the application herein is disllaowed. 19. In support of the application, the 1st defendant/applicant annexed a copy of her draft replying adavit to the plainti/respondent’s application which she contends that it will comprehensively and eectively assist the court in reaching a just determination. Even though the plainti/respondent opposed the instant application arguing that it is made on the basis of falsehoods, it is indisputable that the court cannot obstruct the right of a litigant who has demonstrated willingness to be heard. Again, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18445/eng@2025-12-19 4

page 4 of 5

the plainti/respondent has not demonstrated any prejudice that cannot be suciently compensated by an award of costs if the orders sought herein are granted. 20. The Court in George Kianda & another v Judith Katumbi Kathenge & another (2018) eKLR aptly held as follows: “ The respondent has not stated that she cannot be adequately compensated in costs for any prejudice that she may suer as a result of a favourable exercise of discretion in favour of the applicant. It has been said there is one panacea which heals every sore in litigation and that is costs. Seldom, if ever, do you come across an instance where a party has made a mistake which has put the other side to such advantage or that it cannot be cured by the application of that healing medicine. See Waljee’s (Uganda) Ltd vs. Ramji Punjabhai Bugerere Tea Estates Ltd [1971] EA 188.” 21. Accordingly, after thorough analysis of the application, the 1st defendant/applicant has satisfactorily explained her reasons for failing to le a replying adavit to the plainti’s application. She has also demonstrated her willingness to eectively assist the court in reaching a fair determination of the case expeditiously by ling a draft replying adavit. 22. For that reason, the notice of motion dated 8th October, 2025 is merited, and it is hereby allowed in terms of prayers 4 and 5. The plainti/respondent is awarded the costs of this application. The same is assessed at Kshs.30,000/-. Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY THIS 19TH DAY OF DECEMBER, 2025. .......................................... HON. MBOGO C. G. JUDGE In the presence of: Mr. Benson Agunga - Court Assistant Ms. Jeruto holding brief for Mr. Langat for the Plainti Mr. Sausi for the Defendant/Applicant Mr. Machua holding brief for Ms. Gichuhi for the 1st Interested Party https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18445/eng@2025-12-19 5

page 5 of 5