Kogi v Kimani & another (Enviromental and Land Originating Summons E010 of 1000) [2026] KEELC 3247 (KLR)

4. That this Court be pleased to set aside the ex-parte judgment dated 3-10-2024 and grant the interested party leave to defend the suit. 5. That the Court to reopen the suit for hearing. 6. That the Court be pleased to issue interim orders directing the interested party, her family, agents and/or any other person under her instructions to continue using the access road through the suit pending the determination of the claim by the interested party. 7. That the costs of this application be provided for. 3. The motion is based on ten(10) grounds and is supported by the afidavit of Elishiba Wamburu Waweru dated 27-11-2025. The essence of the grounds and the afidavit is as follows. Firstly, L.R. No. Loc.6/Kandani/379 was registered in the name of Njuguna Kimani before the Plaintifi obtained an order for adverse possession. All along and before the Plaintifi got the said the order, the interested party was in use of a portion of the land measuring 40 metres by 3 metres to the exclusion of the Plaintifi and everyone else since the year 1993. Secondly in March 2025, the Respondent unlawfully erected a barbed wire fence blocking the access road. The interested party has no alternative access to her land except through the access road. Thirdly, during the trial, the Plaintifi said he had built on the suit land while the truth of the matter is that he resides on a difierent parcel of land. He has no permanent structure on the suit land. 4. The motion is opposed by the Plaintifi whose counsel has sworn a replying afidavit dated 17-2-2026 which is to the following efiect. One, the motion is incompetent and misconceived in that there can be no joinder of a party after judgment. Two, the matter having been finalised and a judgment issued and executed, the substantive prayers numbers 3,4 and 5 are untenable and lack legal merit. Finally, no orders can issue to create a wayleave or road of access over private property and due procedure has to be followed where it is envisaged that a road be created over private property. 5. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit and the replying afidavit. The motion raises the following issues. 6. a. Whether there can be joinder of a party after judgment. b. Whether it is necessary to set aside the judgment on record before the interested party’s case can be heard. c. Whether the interested party seeks to create or declare an easement over the suit land. On the first issue, I find that a party can join a suit even after judgment. Article 50(1) of the Constitution provides as follows. “ Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” In this case, the interested party is saying that she has been using a road over the suit land since the year 1993 and it is only in March 2025 that she became aware of the closure of the said road. She craves to be heard. If the Court were to shut her out, that would not be fair or just in view of Article 50(1) of the Constitution. She has a justiciable dispute that the court ought to hear. Secondly on this point, she has shown , at least prima facie, that she has been using the easement for long and she should be heard before the Plaintifi is allowed to close it permanently. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3247/eng@2026-05-26 2

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7. Looking at the second issue, I find that it is not necessary to set aside the judgment on record because the interested party can prosecute her case on the easement without the court upsetting the judgment and decree. Her claim is limited to the easement and not to the entire land. 8. Finally, I find that the interested party is not seeking to create a new right over the suit land. What she seeks is the declaration of what she says is a right that has existed since 1993. 9. Consequently and for the reasons already given, I find merit in the motion dated 27-11-2025 which I allow in terms of prayers 2,5 and 6 pending the hearing and determination of the claim by the interested party. Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 26TH DAY OF MAY, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony. Applicant’s Counsel – Mr. Mwangi Ben. Interested party’s Counsel – Miss Waititu https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3247/eng@2026-05-26 3

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