Kazungu v Patrick Investments Limited; Hussan

3. 6. That this Honourable Court be pleased to issue other or further orders as shall meet the ends of justice; 7. That the costs of this application be borne by the Respondent. The application is based on the following grounds which are set out at the foot thereof: 1. That the Applicant/Interested Party is the lawful and bona de registered proprietor of property Land Registration Number CR 23219 Plot Number 1905/III/MN Kili; 2. That Mohamed Safari Kazungu, the Plainti/Respondent herein, and without any color of right clandestinely instituted a suit against the defendant, Patmack Investments Limited, and proceeded to prosecute the same without eecting service upon the Applicant –the bona de registered owner of the suit property; 3. That the Plainti/Respondent and the Defendant recorded a consent Judgment dated 2nd October 2024 conferring legal ownership of property Land Registration Number CR 23219 Plot Number 1905/III/MN Kili to the Plainti in the most brazen manner, whereof the Defendant withdrew the application paving way for the consent judgment; 4. That the intended interested party was not given any chance at the seat of justice he being the lawful registered owner of property Land Registration Number CR 23219 Plot Number 1905/III/MN Kili; 5. That the Intended Interested Party stands to suer irreparable loss and damage, the Plainti may deal with property Land Registration Number CR 23219 Plot Number 1905/III/MN Kili to the detriment of the Interested Party. 6. That the Applicant/Interested Party has a real and identiable stake and/or legitimate interest in the suit property Land Registration Number CR 23219 Plot Number 1905/III/MN Kili; 7. That it is fair and legitimate that Applicants/Interested Parties be allowed to be enjoined in this suit and orders sought thereof be granted. 4. The application is also supported by the sworn adavit of the applicant/proposed interested party, Al Amin Othman Hussan. The deponent states that he is the lawful registered owner of all that parcel of land known as Land Registration Numbers CR 23219 Plot Number 1905/ III/MN Kili measuring approximately 1.599 hectares. Title was issued to him on 10th November 2014. A copy is attached to the adavit as an exhibit. The deponent continues to state that the plainti in this case clandestinely instituted the suit against the defendant company and proceeded prosecute the same without eecting service upon the him; that he was not given a chance to ventilate his case; that the suit proceeded to conclusion with the recording of a consent judgment dated 2nd October 2024 conferring legal proprietorship upon the plainti. He believes that the actions of the plainti and the defendant are fraudulent and unlawful. He avers that neither the plainti nor the defendant has any legal interest in the suit property and that the suit is a well-choreographed process to give legal force to the transfer of the property to the plainti. He avers that he has a stake in these proceedings and therefore the decision of this court will expose him to insurmountable losses and therefore he should be allowed to be a party in the presence suit. 5. The application is opposed. The plainti Mohammed Safari Kazungu led a sworn replying adavit dated 15th May 2025 in response thereto. He stated that he had conducted a search and found that the defendant was the owner of the suit property; that on 24th January 2025 the Land Registrar issued a Gazette Notice Number 564, indicating that the owner of the suit property was the defendant; that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18705/eng@2025-06-27 2

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he has now been registered as owner; that the document of title exhibited in the supporting adavit is fraudulent and calculated to create inconvenience and chaos in the case; that he followed all due procedure and protocol to acquire the suit land from the defendant. 6. The application was disposed of by way of written submissions which the proposed interested party led dated 19th May 2025. 7. All the applicant has emphasized on in his submissions, and all the case law quoted, relates to the setting aside of ex parte judgment while the judgment in the present case was by way of a consent between the parties. 8. CMC Holdings Limited v Nzioki 2004 KLR 173, Patel v East African Hand Cargo Handling Company 1974 EA 75, Yooshin Engineering Corporation v Aia Architects Limited 2023 KECA 872 KLR, James Kanyita Nderitu and Another v Marios Philotas Ghikas 2016 KECA 470 KLR, Sangram Sing v Election Tribunal Koteh AIR 1955 SC 6 64, Francis Kariuki Muruatetu and Another v Republic and 5 Others Petition Number 15 As Consolidated with Numbers 16 Of 2013 2016 eKLR, are the cases quoted in that regard. 9. It is not that the applicant is not aware of the nature of judgment obtained in the present case. The applicant avers that he was deliberately excluded from the proceedings leading to the consent judgmentdated 2nd October 2024; that he has not had the opportunity to peruse the court le; that no plaint has been uploaded onto the Judiciary e-ling platform and consequently he was unable to prepare and le defence. 10. Kingsway Tires and Automart Limited v Rafiki Enterprises Limited Nairobi CA Civil Appeal Number 220 Of 1995 1996 eKLR is quoted by the applicant in support of his quest to le and defense. Also Omeriye Limited T/A Light International Schools v Hinesh Trading Limited 2022 KEHC 12209 KLR. On the issue of cancellation of the transfer at the interlocutory stage Affluent Limited v Ludco Limited & 3 Others 053 of 2022 [2023] KEELC 16726 KLR 27th March 2023 [Ruling] was cited. 11. I must dispose of the present application in the shortest manner possible by stating as follows: the judgment entered in this case is not anex partejudgment but consent judgmentand all the submissions and case law on ex parte judgment led to the setting aside of a consent judgment are misconceived. The same do not avail the applicant at all. 12. Secondly, the intended interested party is not a party to the suit, but he is seeking to be made a party by way of the present application, post judgment. However, there is no suit. The suit is closed and the parties to the main issue have dispersed. It is immaterial that judgment was obtained by consent; the more reason why the applicant needs move the court outside of the present suit to demonstrate his grievance against the persons who allegedly excluded him deliberately from the present suit. The applicant, not being a party to the consent from the outset, is not entitled to apply to set aside that consent judgment within the present suit, whatever or however egregious or nefarious activities of the parties to the suit were. His sole consolation is that he still has his right under Article 50 or the Constitution as read with the provisions of the Civil Procedure Act and Rules, to approach this court by way of a fresh suit and point out how the court was misled in the present suit. 13. Thirdly, for the same reason of him not being a party to the suit, the prayer for cancellation of transfer cannot issue. The prayer is not even being made at an interlocutory stage but after a suit has been concluded which is improper. There is not any way of applying the principles of mandatory injunctions in this matter the present juncture because the suit is concluded. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18705/eng@2025-06-27 3

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14. The upshot of the foregoing discourse is that the application dated 21st March 2025 is incompetent and I hereby dismiss it with no orders as to costs. This le shall remain closed. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 27TH DAY OF JUNE 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18705/eng@2025-06-27 4

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