Sospeter Githendu & 2 others (suing as the Registered Officials of Mwingi Court Residents Association) v Peter Kairu Matheri, The Chief Land Registrar, The National Land Commission & The County Government of Nairobi

1. What is before the Court for determination is the 1st Defendant’s Notice of Motion application dated the 29th May 2026, in which he seeks the following Orders: a) Spent. b) Spent. c) That this Honourable Court be and is hereby pleased to discharge, vacate and /or set aside the directions and orders issued on 23 rd February 2026 closing the Plaintiffs’ and the 3 rd Defendant’s case. d) That this Honourable Court be and is hereby pleased to discharge, vacate and /or set aside the directions and orders issued on 30 th April 2026 directing parties to file written submissions with respect to the main suit. e) That this Honourable court be pleased to issue orders for the cross-examination of the Plaintiffs’ and the 3rd Defendant’s witnesses by the 1st Defendant’s advocate. f) That this Honorable court be and is hereby pleased to ELC CASE NO. 266 OF 2018 Page 2 of 19 issue orders allowing Ruling the 1st

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Defendant to call witnesses and adduce evidence in his defence. g) That costs of this application be in the cause. 2. The application is premised on grounds on its face and on the supporting affidavit of Edward Wachira Nderitu, an advocate in conduct of the matter for the 1 st Defendant. He avers that his firm was served with the Plaintiffs’ written submissions in the matter on 1st April 2026. Subsequently, he perused the Judiciary’s Court Tracking System (CTS), and established that the Plaintiffs’ and the 3 rd Defendant’s cases were heard and closed on 23rd February 2026 in their absence and in the 1st Defendant’s absence. Further, that the Court issued directions that submissions be filed and a mention date of 30th April 2026 was set for purposes of confirming the same and reserving a judgement date. He attributes their failure and the 1st Defendant’s failure to attend court on the said date on circumstances he terms to have been beyond his control, alleging that they were not served with a hearing ELC CASE NO. 266 OF 2018 Page 3 of 19 Ruling

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notice informing them of the said hearing date, thus they were unaware that the matter had been fixed for hearing. He beseeches the Court to accord the 1st Defendant, whom he alleges has an arguable defence on record, an opportunity to have his case heard and determined on merit, as failure to do so will occasion him prejudice. He reiterates that the Plaintiffs and the 2nd to 4th Defendants will not be prejudiced as each will have their day in Court. He undertakes that the 1st Defendant shall facilitate the expeditious disposal of his case by availing his witnesses at any time when he is called upon to do so. Responses 3. The Application is opposed by the Plaintiffs’ vide the replying affidavit of their Treasurer, one Susan Manyasi. She avers that the Plaintiffs’ case is that the suit land, LR NO. 209/6434/52 is a green space thus they seek orders that the 2nd Defendant revokes title in respect of the 1 st Defendant. Further, that at the time of inception of the suit, the Plaintiffs ELC CASE NO. 266 OF 2018 Page 4 of 19 Ruling

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were unable to effect personal service upon the 1 st Defendant, which necessitated substituted service through the Daily Nation newspaper of 6 th March 2019. He claims that despite service, the 1st Defendant entered appearance five (5) years later, on 8 th March 2024. However, he has never filed any statement of defence, witness statements, or documents to date thus he has no arguable case. 4. He points out that the hearing date of 23 rd February 2026 was taken by consent of all parties on 9 th July 2025, with the Advocate for the 1st Defendant in attendance thus there is no justification for failing to attend Court on the scheduled hearing date and the scheduled mention of 30 th April 2026, as the 1st Defendant had been duly served with written submissions on 1st April 2026. He contends that the application is a fishing expedition engineered to derail the delivery of judgment. Further, that the 1 st Defendant is indolent yet equity aids the vigilant. ELC CASE NO. 266 OF 2018 Page 5 of 19 Ruling

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5. The application is also opposed by the 4th Defendant who filed Grounds of Opposition. He avers that the application is filed to delay conclusion of the matter. Further, that despite entering appearance in the matter on 8th March 2024, the 1st Defendant deliberately chose not to participate, and did not even bother to file a defence/witness statements. 6. In response to the Plaintiff’s replying affidavit, the 1 st Defendant filed a further affidavit sworn by Edward Wachira Nderitu, Advocate. He avers that the assertions that the 1 st Defendant is yet to file a defence, list of witnesses, witness statements and list of documents are new and surprising to him as he recently took up personal conduct of the suit on the assumption that the Counsel from their firm who had previously conducted the matter, one Irungu Betty Wamukore, had filed the same. He contends that the said advocate left the said firm’s employment in January 2026 and that her omission should not be visited upon the 1 st Defendant. ELC CASE NO. 266 OF 2018 Page 6 of 19 Ruling

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7. He urges the Court to consider that the 1 st Defendant is a senior citizen who holds title to the suit land, issued by the 2nd Defendant, and which the Court is called to determine whether it is public land. He contends that the 1 st Defendant stands to lose his property without being accorded an opportunity to be heard. 8. The 2nd and 3rd Defendants did not file responses. 9. The application was canvassed by way of written submissions. Submissions 10. The 1st Defendant reiterates his averments in the supporting affidavit and further affidavit to the instant application and insists that he was prevented by sufficient cause from attending Court on 23rd February 2026 and 30th April 2026, which was as a result of an inadvertence and an excusable mistake on the part of his Counsel. Further, that the same ought not to be visited upon him, an innocent litigant as he ELC CASE NO. 266 OF 2018 Page 7 of 19 Ruling

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would be denied a fair hearing and would risk loosing his property. He urges the Court to favour him with discretion and allow the prayers sought. 11. To buttress his averments, he relied on the following decisions: Patel v EA Cargo Handling Services Limited (1974) EA 75, Patriotic Guards Ltd v James Kipchirchir Sambu (2018) eKLR, Jesse Kimani v Mc Connell (1966) EA 547, Shah v Mbogo (1967) EA 116 at 123, and Taita Taveta Teachers Investment Limited v Mbaro Johnson & 9 others (2026) KECA 557 (KLR). 12. On their part, the Plaintiffs submit that the 1 st Defendant has engaged in a pattern of delay and point out that contrary to Order 7 Rule 1 of the Civil Procedure Rules which provides that a statement of defence must be filed within fourteen (14) days of entering appearance, he did not file a defence and without it, there are no triable issues before the Court. They insist that the 1st Defendant’s absence from the Court on the trial date was a deliberate choice and does not constitute ELC CASE NO. 266 OF 2018 Page 8 of 19 Ruling

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sufficient cause. Further, that their witnesses have already testified and that the power of the Court to recall witnesses under Order 18 Rule 10 of the Civil Procedure Rules and Section 146 (4) of the Evidence Act must be exercised judiciously in exceptional circumstances, it should not be used in this case, as a tool to rescue an indolent litigant from their own default. 13. They also submit that the application is an afterthought, filed after their witnesses have testified, since the 1 st Defendant intends to tailor a defence to his evidence, which would violate the fundamental principle of a fair trial. They also submit that casting blame upon a former associate cannot stand, as E.W. Nderitu & Co. Advocates (the 1 st Defendant’s Advocates), were was duly appointed to act for the 1 st Defendant but they deliberately chose not to participate. 14. To buttress their averments, the Plaintiffs relied on the following ELC CASE NO. 266 OF 2018 Page 9 of 19 Ruling

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decisions: Joseph Ndungu Kamau v John Njihia (2017) eKLR, Sendy Kenya Freight Limited v Multiple Solutions Limited [2021] KEHC 1803 (KLR); Odinga & 7 Others v Independent Electoral and Boundaries Commission & 3 Others (2013) KESC 1 (KLR); Samwel Kiptoo Rop & another v Beatrice Nakhumicha Khaoya & 3 other [2020] eKLR, and Nderu v Ng’ang’a [2022] KEELC 12571 (KLR). Analysis and Determination 15. I have considered the instant Notice of Motion application, the respective affidavits, Grounds of Opposition including rivalling submissions and the only issue for determination is whether this Court should set aside its directions and Orders issued on 23rd February 2026 closing the Plaintiffs’ as well as the 3rd Defendant’s case and allow the 1st Defendant to cross examine the Plaintiffs’ together with the 3 rd Defendant’s witnesses and present his evidence. ELC CASE NO. 266 OF 2018 Page 10 of 19 Ruling

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16. The 1st Defendant’s case is that the Plaintiffs’ and the 3 rd Defendant’s cases were heard and closed on 23 rd February 2026, in his absence and in his advocates absence, since they were not served with the hearing notice of the said scheduled hearing date. 17. On their part, the Plaintiffs and the 4 th Defendant contend that the 1st Defendant has been indolent throughout the proceedings and that he has not filed a defence /witness statements and documents to date. They argue that a party cannot seek to reopen a case to adduce evidence when they have no pleadings on record. They also contend that the hearing date of 23rd February 2026 was scheduled by consent of the parties’ advocates, the 1st Defendant’s’ included, thus the 1st Defendant has no excuse for non-attendance. 18. The 1st Defendant also urged the Court not to visit mistake of counsel upon him, as it contends that one Irungu Betty Wamukore, a former associate in the firm of E.W. Nderitu & ELC CASE NO. 266 OF 2018 Page 11 of 19 Ruling

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Co. Advocates on record for him failed to file his statement of defence and documents in readiness for trial. 19. Setting aside or reviewing ex parte orders is discretionary, provided a party demonstrates sufficient cause. In the case of Wachira Karani v Bildad Wachira [2016] eKLR, Mativo J (as he then was) held that: “Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket application. Thus, demonstrate that formula the he was of universal defendant prevented must from attending court by a sufficient cause..” 20. The Court of Appeal stated as follows in CMC Holdings Ltd vs James Mumo Nzioki [2004] KECA 143 (KLR): “The discretion that a court of law has, in deciding whether or not to set aside ex-parte ELC CASE NO. 266 OF 2018 Page 12 of 19 Ruling

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order such as before us was meant to ensure that a litigant does not suffer 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 discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error” 21. The Court of Appeal also stated as follows in Tabuche v Tinga & 2 others (Civil Appeal E003 of 2022) [2024] KECA 551 (KLR) (24 May 2024) (Judgment): “We take to mind the High Court decisions in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR; and Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR where the court correctly held that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of the litigation and that, while the mistake of counsel is excusable, if it is accompanied by a litigant’s carelessness and inactivity, then the ELC CASE NO. 266 OF 2018 Page 13 of 19 Ruling

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refusal by the court to exercise discretion in favour of such a party cannot be impugned.” 22. From the Court record, I note on the 9 th July, 2025, the 1st Defendant was represented by Ms Wamukore, when the matter was rescheduled for hearing on the 23 rd February, 2026, on which date the 1st Defendant nor his Counsel attended court. Further, I note the 1 st Defendant had previously been represented by the said Counsel who never informed Court that he did not file a Defence and witness statements. Insofar as the 1st Defendant is seeking to set aside the directions and orders issued on 23 rd February 2026 closing the Plaintiffs’ and the 3rd Defendant’s case, noting that he did not even file a Defence to counter the Plaintiff’s averments, I opine that he has not demonstrated a sufficient cause for failing to file a Defence nor to attend Court on the date the hearing of this suit was scheduled. The 1 st Defendant has now sought to blame the previous Counsel for failing to file the Defence and attend Court for hearing. ELC CASE NO. 266 OF 2018 Page 14 of 19 Ruling

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23. In the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 Kimaru, J (as he then was) stated that: “Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff's determination to execute the decree issued in its favour, is an indictment of ELC CASE NO. 266 OF 2018 Page 15 of 19 the defendant. She Ruling had been

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indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant. 24. From the facts before me while associating myself with the decisions cited, I find that the 1st Defendant is not being candid. It is trite that cases belong to litigants who have to be vigilant and a party cannot seek to blame a Counsel when he has not been vigilant. At this juncture, I am unable to believe that the 1st Defendant was not aware that the erstwhile advocate had not filed a Defence, documents and witnesses statements, yet she was attending Court on his behalf. I note the 1st Defendant is now seeking to adduce evidence yet there is no Defence nor witness statement filed. 25. In Raila Odinga & 5 others vs IEBC & 3, others (2013) eKLR, the Court held thus: ELC CASE NO. 266 OF 2018 Page 16 of 19 Ruling

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'The parties have a duty to ensure that they comply with their respective timelines, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court losses the time that he/she is entitled to, and no extra burden should be imposed on a party or court as a result of omissions or characteristics which were foreseeable or could have been avoided. The purpose of presenting witness statements and documents is for the opposite party to have fairness, a level playing field and equality of arms, which aligns with the rules of natural justice'. 26. See also the case of Ibui & another v Ibui & 2 others (Environment & Land Case 105 of 2016) [2023] KEELC 19200 (KLR) (26 July 2023) (Ruling). ELC CASE NO. 266 OF 2018 Page 17 of 19 Ruling

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27. In the circumstances, I am unable to set aside the Orders issued on 23rd February, 2026 and to allow the 1 st Defendant to present evidence when he had not even filed a Defence, Documents and witness statements. To my mind, I find that it would be improper to exercise my discretion to allow a litigant who had not been committed to his case and failed to demonstrate an excusable mistake or inadvertent error to disadvantage the other litigants who have been committed to their case. 28. In the foregoing, I find the instant Notice of Motion application unmerited and will proceed to dismiss it with costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 21st DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE ELC CASE NO. 266 OF 2018 Page 18 of 19 Ruling

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In the presence of: Kobia for Plaintiffs Gituma for 4th Defendant Okiror holding brief for Wachira Nderitu for 1 st Defendant Kenny Kimani (Representing 1st Defendant) Court Assistant: Joan ELC CASE NO. 266 OF 2018 Page 19 of 19 Ruling

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