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5) That the costs of this Application be provided for. 2. The application is premised on the 10 grounds on the face thereof, the Supporting Affidavit evenly dated and a Supplementary Affidavit dated 09.04.2026 both sworn by one Sotimarie Jepkemboi Biwott, a member of the Board of Trustees and in the management of the 2nd defendant. 3. It is the 2nd defendant’s claim that they were never served with the summons, pleadings and/or any other directions of the court thereafter and as a result, they have been denied a chance to defend itself against the allegations made against it. 4. It is their contention that they only became aware of the matter when their advocate on record, who was appearing and preparing for another matter, in the proceedings known as Eldoret ELC No. 390 of 2017, saw the present matter listed for hearing on 23.03.2026, on the daily cause list. That upon the said discovery, they instructed their counsel on record to file relevant documents on their behalf including the present application. 5. The 2nd defendant/applicant further avers that allowing the present application and setting aside the proceedings in the matter and directing that the matter starts denovo, will serve the interest of justice and offer all parties a chance to ELC Civil Case No. E018 Of 2022 Ruling Page 2

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prove their cases and maintained that no prejudice will be suffered by the respondents. 6. In conclusion, the applicant averred that unless the orders sought are granted, it stands to suffer loss and irreparable damage. Further, that given the nature of the dispute between the parties being a land dispute, the services of the 2nd defendant are likely to be impaired. They thus urged the court to allow the application as sought. 7. The application was opposed. The plaintiff/respondent filed a Replying Affidavit dated 27th March, 2026. He dismissed the application as fatally defective, frivolous, vexatious, scandalous and an abuse of the court process. 8. It was the plaintiff/respondent’s claim that the applicant has not met the required threshold for the grant of the orders sought. 9. It was his contention that the 2nd defendant was duly served with the summons to enter appearance on 08.07.2022 in compliance with the provisions of Order 5 Rule 3 of the Civil Procedure Rules and annexed a copy of the Affidavit of Service filed to that effect. 10. That, however, despite being served, the 2 nd defendant failed to enter appearance and he subsequently requested for ELC Civil Case No. E018 Of 2022 Ruling Page 3

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interlocutory judgment to be entered against the 2 nd defendant. 11. That the said request for Interlocutory Judgment was endorsed on 19.08.2022 upon the court being satisfied that the service upon the 2nd defendant was properly effected. 12. The plaintiff/respondent further deponed that there was no justifiable cause and explanation on the delay of nearly 4 years on the part of the 2nd defendant before filing the present application. He thus avers that if the application is allowed, the same will amount to denying him his right to expeditious trial. 13. The plaintiff/respondent also maintained that he stands to suffer great prejudice since the 2 nd defendant is in occupation of the suit property and has even put up a fence on the land while he has been denied an opportunity of utilizing what lawfully belongs to him. 14. In conclusion, the plaintiff/respondent urged the court to dismiss the application with costs. 15. The replying affidavit was duly served upon the 2 nd defendant/applicant, who filed a Supplementary Affidavit dated 09.04.2026 and sworn by one Sotimarie Jepkemboi ELC Civil Case No. E018 Of 2022 Ruling Page 4

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Biwott in response to the averments and allegations made thereto. 16. In response to the allegations by the respondent that service was properly effected upon the 2nd defendant, to one Caroline of Maria Soti Girls Secondary School by the process server, one Vincent Ogutu, she denied the said averments and maintained that the said person and entity were unknown to herself and the 2nd defendant/applicant. 17. In addition, it was her claim that the 2 nd defendant does not have a secretary by the name Caroline in their employment and service and therefore the alleged service was effected upon a stranger and is thus a nullity and they shall be seeking to cross-examine the said process server. 18. Further, with regard to the entity upon which service was allegedly effected, Maria Soti Secondary School in Elgeyo Marakwet, it was her claim that the said entity is not a party in the present proceedings. It is also her contention that the respondent, through the process server, avoided/disregarded the known headquarters of the 2 nd defendant situated and run on the suit parcel within Eldoret town. 19. With regard to the allegation that the 2 nd defendant failed and/or ignored to enter appearance within the stipulated ELC Civil Case No. E018 Of 2022 Ruling Page 5

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timelines as required by law, she reiterated that there was no service of summons or pleadings upon them to elicit a response. 20. The applicant also deponed that the claims of prejudice by the respondent are misplaced since the plaintiff/respondent has never owned the suit property at any given time. 21. In response to the claims of inordinate delay in filing the present application, she dismissed the same as being misplaced, unfounded and reiterated that there was no service effected upon the 2nd defendant hence the present application could only have been filed upon discovery of the existence of the suit. 22. In the end, she urged the court to allow the application and to grant the orders sought. 23. On 23.03.2026, this court issued directions on disposal of the present application by way of submissions. The 2 nd defendant/applicant filed its submissions dated 09.04.2026 while the plaintiff/respondent filed his submissions dated 08.04.2026 together with authorities, which I have read and duly considered. 24. Counsel for the 1st defendant informed the court that they would not be opposing the present application. ELC Civil Case No. E018 Of 2022 Ruling Page 6

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Analysis and Determination: 25. I have carefully considered the grounds in the application and in the supporting and supplementary affidavits sworn by Sotimarie Jepkemboi defendant/applicant, Biwott, the 2 nd on behalf of the replying affidavit in response thereto as well as the rival submissions in totality. 26. It is therefore my considered view that the issues arising for determination are as follows: - 27. i. Whether there was proper service of Summons, pleadings and subsequent court’s directions herein upon the 2nd defendant/applicant. ii. Whether the 2nd defendant/ applicant has made out a case for setting aside the ex parte and/or interlocutory judgment entered on 19 th August, 2022 and all consequential orders. iii. Whether the present application is merited. iv. Who shall bear the costs of the present application. Having identified the above issues for determination, I will now proceed to discuss the same as hereunder. i. Whether there was proper service of Summons, pleadings and subsequent court’s directions herein upon the 2nd defendant/applicant; 28. At the center of the present application is the issue of service. The first issue herein therefore seeks to ascertain ELC Civil Case No. E018 Of 2022 Ruling Page 7

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whether or not there was proper service of the summons, pleadings and any other subsequent directions of the court upon the 2nd defendant/applicant. 29. The issue of service goes to the root of any ex-parte and/or interlocutory judgment. Where the court is satisfied that there was no proper service, it has the discretion to set aside and/or vary any ex-parte judgment entered and all the consequential orders thereto as a matter of right. 30. It is the 2nd defendant/applicant’s claim that it was never served with the Summons, pleadings and the subsequent directions of the court issued in the matter. 31. The applicant further denied the allegations made by the plaintiff/respondent, through the process server and as contained in the affidavit of service, that service was effected to one Caroline, a secretary at Maria Soti Girls Secondary School, who received the documents but refused to sign and acknowledge receipt on the principal copy. 32. It is the applicant’s contention that they have no secretary by the name Caroline in their employment and therefore avers that the alleged service was effected upon a stranger. 33. Further, it is also their claim that ‘Maria Soti Girls Secondary School in Elgeyo Marakwet’ is not a party in these ELC Civil Case No. E018 Of 2022 Ruling Page 8

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proceedings. In addition, the applicant averred that the alleged service avoided and disregarded the known headquarters of the 2nd defendant which is situated and run in Eldoret on the suit land. 34. The plaintiff/respondent on the other hand maintained that the applicant was duly served with the summons on 08.07.2022 in compliance with Order 5 Rule 3 and an Affidavit of Service duly filed to that effect. 35. Order 5 Rule 3 of the Civil Procedure Rules provides for the procedure of service upon a Corporation and states as follows:“[Order 5, rule 3.] Service on a corporation. 3. Subject to any other written law, where the suit is against a corporation the summons may be served — (a) on the secretary, director or other principal officer of the corporation; or (b) if the process server is unable to find any of the officers of the corporation mentioned in rule 3 (a) — (i) by leaving it at the registered office of the corporation; (ii) by sending it by prepaid registered post or by a licensed courier service provider approved by ELC Civil Case No. E018 Of 2022 Ruling Page 9

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the court to the registered postal address of the corporation; or (iii) if there is no registered office and no registered postal address of the corporation, by leaving it at the place where the corporation carries on business; or (iv) by sending it by registered post to the last known postal address of the corporation.” 36. I have carefully looked at the Affidavit of Service dated 14.07.2022 and sworn by one VINCENT O. OGUTU, a licensed process server. At paragraphs 3 and 4 of the said Affidavit, it is deponed as follows: “3. That on 08.07.2022, I traveled to Maria Soti Education Trust vide Eldoret – Elgeyo Border, alighted at a bus stop, proceeded to Maria Soti secondary school and on arrival met a security guard manning the gate and he directed me to the director’s office. On arrival I met Caroline, a secretary to the director after my introduction and purpose of visit, she did the same and perused the said court documents and acknowledged service but declined to sign. 4. That the said Caroline, a secretary to the director became known to me at the time of affecting service at 12:25 PM......” ELC Civil Case No. E018 Of 2022 Ruling Page 10

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37. It is evident from the above that service was effected at Maria Soti Secondary School. The question that therefore arises is whether the 2nd defendant/applicant herein, BOARD OF MANAGEMENT MARIA SOTI EDUCATION TRUST, is one and the same entity as MARIA SOTI SECONDARY SCHOOL. 38. No material has been placed and/or produced before this court showing the nexus or relationship between the two entities, ‘BOARD OF MANAGEMENT MARIA SOTI EDUCATION TRUST’ and ‘MARIA SOTI SECONDARY SCHOOL’ which from a cursory look appear significantly different. The applicant has justifiably stated that the said Maria Soti Secondary School is not a party in these proceedings. 39. This court therefore has no way of ascertaining without a shred of evidence that indeed the two entities, ‘BOARD OF MANAGEMENT MARIA SOTI EDUCATION TRUST’ and ‘MARIA SOTI SECONDARY SCHOOL’ are one and the same. In essence therefore, there is no way of confirming that the service allegedly effected to the said Caroline, alleged a secretary to the director of MARIA SOTI SECONDARY SCHOOL amounts to proper service upon the 2nd defendant herein. 40. To this end therefore, it is the finding of this court that there was no proper service of Summons, Pleadings and any other directions of the court upon the 2nd defendant/applicant as required in law. ELC Civil Case No. E018 Of 2022 Ruling Page 11

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ii. Whether the 2nd defendant/ applicant has made out a case for setting aside the ex parte and/or interlocutory judgment entered on 19th August, 2022 and all consequential orders; 41. The second issue seeks to determine whether the 2 nd defendant/applicant has met the criteria for setting aside the interlocutory judgment entered on 19.08.2022 and all the consequential orders thereto. 42. This Court retains unfettered discretion in determining whether or not to set aside such an ex-parte and/or interlocutory judgment. In exercising the said discretion, the court ought to consider the circumstances of each case. In MBOGO VS SHAH (1968) E.A 93 the court 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 a person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice” 43. However, before delving into the necessary elements to be considered and the merits thereto, it is important to first determine whether the interlocutory judgment entered on 19.08.2022 was a regular judgment or an irregular judgment. ELC Civil Case No. E018 Of 2022 Ruling Page 12

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44. The Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) in defining what amounts to a regular judgment and an Irregular judgment entered held as follows:“In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. ELC Civil Case No. E018 Of 2022 Ruling Page 13

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See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173). In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right . The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice ELC Civil Case No. E018 Of 2022 Ruling Page 14

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system. (See Onyango Oloo v. Attorney General [1986-1989] EA 456). (emphasis mine) 45. Thus, guided by the Court of Appeal decision above and in view of the findings in issue (i) above that the 2 nd defendant/applicant was not properly served with the Summons and pleadings herein, this court finds that the default/interlocutory judgment entered on 19.08.2022 is an irregular judgment and the same is hereby set aside ex debito justitiae, as a matter of right. 46. Consequently, I find no need to delve into the elements, factors and/or considerations such as whether the draft defence raises triable issues or the delay occasioned in filing the application and the merits thereto. From the facts above, it is clear that the 2nd defendant/applicant did not enter appearance and file its defence within the stipulated timelines because there was no proper service of summons and pleadings and was not therefore granted an opportunity to defend itself. 47. In conclusion, this court finds that the ex-parte/interlocutory judgment entered on 19.08.2022 is hereby set aside as a matter of right. iii. Whether the present Application is merited ; ELC Civil Case No. E018 Of 2022 Ruling Page 15

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48. In view of the findings in issues(i) and (ii) above, it is my considered opinion and finding that the present application is merited and the 2nd defendant/applicant is therefore entitled to the grant of the reliefs sought. iv. Who shall bear the costs of the present application; 49. On the issue of costs, the general rule is that costs shall follow the event unless the court directs otherwise. However, given the circumstances of the case, I will direct each party to bear their costs of the application. Disposition; 50. In view of the foregoing, I accordingly find that the Notice of Motion Application dated 21st March, 2026 is merited and is hereby allowed on the following terms; 1) The application dated 21.03.2026 is hereby allowed. 2) An order be and is hereby issued setting aside the interlocutory judgment entered 19.08.2022 and all the consequential orders thereto. 3) The 2nd defendant/applicant be and is hereby granted leave of 14 days from the date of this ruling to file and serve its defence out of time. 4) Each party to bear their own costs of the application. ELC Civil Case No. E018 Of 2022 Ruling Page 16

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5) The matter shall be mentioned for pre-trial directions and to confirm compliance with Order 11 of the Civil Procedure Rules. 51. It is so ordered. DATED, SIGNED and DELIVERED in ELDORET this 17TH day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the presence of: Mr. Biko for the 2nd Defendant/Applicant No appearance for Mr. Mathai for the Plaintiff Mr. Jama for the 1st Defendant Court Assistant – Laban ELC Civil Case No. E018 Of 2022 Ruling Page 17

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