Ntai v Mwaura & another

b) THAT this Honourable Court be pleased to set aside the proceedings made on 13th April, 2026 when the defendants’ case was closed. c) THAT this Honourable Court be pleased to re-open the defence case and grant leave to the defendants to adduce evidence. d) THAT costs of the application be provided for. 2. The application is premised on the grounds that the applicants’ defence case was closed by the court on 13th April 2026 when the case was slated for hearing after the applicants failed to attend court; that failure by the applicants to attend court was not deliberate but on account of an inadvertent error namely mishearing or misunderstanding of the date given by the court for hearing of the case. According to the applicants, they genuinely believed that the case was slated for hearing on 16th April, 2026 and not 13th April, 2026 hence failure to attend court was a genuine mistake and not deliberate. ELC .NO. E006 OF 2023 Page 2 RULING

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3. Explaining that they have a triable and meritorious defence which deserves to be heard on its merits, the applicants assert that the prejudice, if any, to be occasioned on the plaintiff/respondent if their application is allowed, is compensable by way of costs. The applicants aver that unless the orders sought are granted, they may suffer irreparable prejudice, to wit denial of the right to be heard. 4. The application is supported by affidavit sworn by the applicants on 18th April 2026 in which the grounds on the face of the application are reiterated. 5. In reply and opposition to application, the plaintiff/respondent swore a replying affidavit in which he contends that the application is fatally defective for violating mandatory provisions of the law like Section 5 of the Oaths and Statutory Declarations Act; Order 51 rule 5 and Order 19 rule 5 of the Civil Procedure Rules. 6. Concerning the applicants’ claim that they misheard the date given by the court for further hearing of the suit, the respondent avers that the date was properly communicated ELC .NO. E006 OF 2023 Page 3 RULING

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to the defendants by the court and claims that, upon request for confirmation of the hearing date by the applicants, the Court confirmed the date to the applicants in Kiswahili language. The respondent avers that the defendants/applicants deliberately sought to circumvent the due process of the Court. 7. According to the respondent, the alleged deliberate failure, is borne out by his claim that on the date the suit was slated for hearing, the applicants in disobedience of court orders, entered the suit property and interfered with his possession of it (sprayed his maize crop and planted crops on the suit property). In support of the said alleged unlawful activities of the applicants, the respondent has annexed photographs marked "ENN 1". 8. Terming the application an abuse of the court process and asserting his claim that the applicants deliberately sought to circumvent the due process of the Court, the respondent terms the applicants’ application devoid of merit, an abuse of the court process and prejudicial to him in that it would lead ELC .NO. E006 OF 2023 Page 4 RULING

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to delay in determination of his suit and urges the court to dismiss the application with costs to him. 9. Pursuant to directions given by the Court to the effect that the application be disposed of by way of written submissions, parties filed submissions which I have read and considered. 10. In their submissions dated 29th May 2026, the applicants have identified the issue for the court’s determination to be whether their application is merited. 11. Concerning that issue, the applicants have asserted their claim that they mistakenly believed the date given for hearing of their case was 16 th April, 2026 and not 13th April, 2026. The applicants have pointed out that upon discovering the error, they immediately filed the instant application. 12. Maintaining that their failure to attend Court on the date their suit was slated for hearing was as a result of an honest and genuine mistake and not a deliberate disregard of the Court process, the applicants have reiterated their contention that their defence raises triable issues and that unlike they, ELC .NO. E006 OF 2023 Page 5 RULING

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who stand to suffer irreparable prejudice if the orders sought are not granted, the respondent will not suffer prejudice that is incapable of being compensated by an award of costs. 13. Based on the provisions of Order 12 rules 2 and 7 of the Civil Procedure Rules, which empowers the Court to set aside dismissal orders, the applicants urge this Court to exercise the discretion vested in it in favour of substantive justice rather than punishing them for an innocent mistake. 14. The applicants have placed reliance on the decisions in Philip Chemowolo & Another vs Augustine Kubende (1982-88) KAR 103; Belinda Murai vs Amos Wainaina (No.4) (1982) KLR and Kiguru & Another vs Muhia & 5 Others (2025) KEELC 8106 (KLR). 15. In his submissions dated 15th June 2026, the respondent has identified four issues for the Court’s determination. These are: ELC .NO. E006 OF 2023 Page 6 RULING

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i) Whether the applicants’ application is fatally defective for being supported by an improperly commissioned and defective supporting affidavit? ii) Whether the applicants’ application violates Order 51 rule 13 of the Civil Procedure Rules; iii) Whether the applicants have met the threshold for reopening their case; and iv) 16. Who should bear the costs of the application? On whether defective for commissioned the applicants’ application is being supported by improperly and defective an supporting fatally affidavit, the respondent has reiterated his contention that the supporting affidavit is invalid. In that regard, the Respondent points out that the affidavit suggests that it was sworn at Ol Kalou yet the Commissioner's stamp indicates that the place of swearing is Nairobi. According to the respondent, there is a possibility that the affidavit was not sworn before a Commissioner of Oaths as required by law thereby contravening the provisions of Section 5 of the Oaths and Statutory Declarations Act which requires every affidavit to ELC .NO. E006 OF 2023 Page 7 RULING

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state the place and date where it was sworn before a Commissioner of Oaths. 17. Maintaining that the affidavit sworn in support of the application is not properly commissioned, based on the decisions in the cases of Mary Gathoni & Another vs Frida Ariri Otolo & Another (2020) Eklr where the Court struck out an affidavit because the place where it was sworn differed from the Commissioner's stamp and in CMC Motors Group Ltd vs Bengeria Arap Korir Trading as Marben School & Another [2013] Eklr, where the Court held that an affidavit not properly sworn before a Commissioner of Oaths is fatally defective, the respondent urges this Court to strike out the affidavit thereby rendering the entire application incompetent for want of evidence. 18. On whether the applicants’ application violates Order 51 rule 13 of the Civil Procedure Rules, the respondent submits that the application does not comply with the mandatory provisions of Order 51 rule 13 of the Civil ELC .NO. E006 OF 2023 Page 8 RULING

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Procedure Rules and that the said procedural defect renders the application incompetent. 19. As to whether the applicants have met the threshold for reopening their case, the respondent submits that the applicants do not deserve the Court's discretion because: a) They approached the Court with unclean hands, having allegedly violated conservatory orders by entering the disputed land and damaging crops; b) The hearing date had been clearly explained to the applicants by the court thereby making the alleged misunderstanding implausible; c) The alleged confusion between the Kiswahili words "Kumi na Tatu" (13) and "Kumi na Sita" (16) is unbelievable; d) The applicants deliberately failed to attend Court and have exhibited a pattern of delaying the proceedings; e) The explanation offered by the applicants amounts to an attempt to reopen proceedings that had been lawfully concluded. ELC .NO. E006 OF 2023 Page 9 RULING

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20. In support of his contention that the applicants have not made up a case for being granted the orders sought, the respondent has placed reliance on case of Estate of Peter Omolo Akum (ELC Case No. E3580 of 2022) where the Court held that misunderstanding procedural requirements or administrative inconvenience does not amount to sufficient cause for reopening concluded proceedings. 21. On the issue of costs, the respondent has submitted that costs should follow the event and terming the applicants’ application and conduct prejudicial to him, urges the Court to dismiss the applicants’ application with costs to him. 22. I have read and considered the application, the response thereto and the submissions filed by the parties. I find the issues for the Court’s determination to be: - i) Whether the application is fatally defective for none compliance with mandatory provisions of the law? ii) Subject to the outcome of (i) above, whether the applicant’s application is merited; iii) What is the order as to costs? ELC .NO. E006 OF 2023 Page 10 RULING

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23. On whether the application is fatally defective for none compliance with mandatory provisions of the law, the respondent has challenged the competency of the application on two fronts; namely none compliance with the provisions of Section 5 of the Oaths and Statutory Declarations Act which requires every Commissioner of Oaths before whom any oath or affidavit is taken or made under the Act, to state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 24. The respondent contends that the affidavit sworn in support of the application is bad in law for violating the provisions of Section 5 of the Oaths and Declarations Act, Cap 15 Laws of Kenya. Concerning that contention, I have taken into account the reasons advanced by the respondent for arguing that the supporting affidavit is fatally defective; being that the affidavit was sworn at Ol Kalou before a Commissioner of Oath whose address is indicated as P.O Box 6870-00100, Nairobi. ELC .NO. E006 OF 2023 Page 11 RULING

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25. Because the Stamp of the Commissioner of Oaths who commissioned the affidavit indicates the postal address of the Commissioner of Oaths as Nairobi, the respondent submits that the applicants never took the oath before a Commissioner of Oaths as purported in the affidavit because it is not possible for them to have taken the oath before a Commissioner of Oaths in Nairobi while in Ol Kalou. In support of that submission/contention, the respondent has placed reliance on the persuasive decision in the case of Regina Munyiva Ndunge v Kenya Commercial Bank (2005) e KLR cited with approval in the case of Mary Gathoni & another vs. Frida Ariri Otolo & another (2020) e KLR thus: “If the affidavit was sworn at Machakos, it should have been before a Commissioner for oaths in Machakos and the stamp should show likewise…”. 26. The respondent has also relied on the decision in the case of CMC Motor Group Limited v. Bengeria Arap Korir Trading as Marben School & another (2013) e KLR where the Court stated/held: ELC .NO. E006 OF 2023 Page 12 RULING

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“…The merit as I find it in respect of Wando’s affidavit is that the affidavit does not seem to have been sworn before a Commissioner of Oaths… Bearing that definition, the question that needs to be answered is whether Wando took an oath before a Commissioner of Oaths. Looking at her affidavit it would seem that she signed the affidavit in Nairobi and the Commissioner of Oaths signed it in Mombasa. It will therefore seem that her affidavit fails to conform to the requirements of Section 5 of Cap 15. It is not an affidavit which is under oath. That being so the same is hereby struck out.” 27. While I agree with the decisions in the authorities relied on by the respondent to the extent that an affidavit proven not to have been sworn before a Commissioner of Oaths is fatally defective, I do not agree with the submission that the mere fact that the stamp used to Commission the affidavit indicates the address of the Commissioner of Oaths as being different from the place the affidavit is said to have been ELC .NO. E006 OF 2023 Page 13 RULING

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sworn is proof that the affidavit was sworn at a place other the one indicated in the jurat. To hold that the affidavit was not commissioned by the Commissioner of Oaths at the place indicated in the jurat as having been sworn, especially in the circumstances of this case, where the distance from Nairobi to Ol Kalou is not very long to rule out the possibility of the person who commissioned it to have been in Ol Kalou at the time would, in my view, amount to unlawfully shifting the burden of proof of the allegation that the affidavit was not commissioned at Ol Kalou to the applicants. 28. While I appreciate the mischief the courts sought to cure in the decisions cited by the respondent, in the circumstances of this case, I am not convinced that the respondent has discharged the burden placed on him of proving that the impugned affidavit was not sworn by the Commissioner of oaths who is indicated to have sworn it in Ol Kalou. The mere fact that the stamp indicates the address of the Commissioner of Oaths to be Nairobi is not proof that the said Commissioner was not in Ol Kalou at the time the affidavit ELC .NO. E006 OF 2023 Page 14 RULING

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was Commissioned and did not Commission the affidavit at Ol Kalou. 29. With regard to the claim that the application violates the provisions of Order 51 rule 13, the respondent has not demonstrated in what manner the application offends the said provision of the law and/or what prejudice he has suffered on account of the alleged none compliance with said provision of the law to warrant his claim that the alleged defect renders the application fatally defective. 30. For the foregoing reasons, I return a negative verdict on the issue as to whether the applicants’ application is fatally defective for none compliance with mandatory provisions of the law. 31. On whether the applicant’s application is merited, I have taken note of the explanation offered by the applicants of their failure to attend court for hearing of their case. I have also taken into account the conduct of the applicants after they discovered that their suit was closed by court on ELC .NO. E006 OF 2023 Page 15 RULING

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account of none attendance which was, moving to court immediately and explaining why they did not attend court and seeking the indulgence of the court in setting aside the order closing their suit for none attendance. I have further taken into account the reasons given by the respondent for opposing the applicants’ application being the contention that the none attendance was deliberate and not on account of a genuine mistake and the claim that on the day the case was slated for hearing, the applicants’ in disobedience of existing court orders, went to the suit property and destroyed the respondent’s crops. I find the claim not to have been substantiated and the contention that grant of the orders sought will occasion prejudice to the respondent as it would lead to delay in conclusion of the case. 34.I have further appraised myself of the nature of dispute presented before the court, with a view of determining what the impact of granting or failing to grant the orders is likely to be on the parties to the dispute. In that regard, I have noted that the dispute relates to alleged entitlement to the suit property arising from sale of the suit property to the ELC .NO. E006 OF 2023 Page 16 RULING

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respondent by the applicants. The applicants have in their pleadings, denied existence of the alleged arrangement. In the circumstances, re-opening the defence case for hearing will serve wide interest of justice and fairness as it would afford the Court an opportunity to determine the case presented before it on its merits. 35. The prejudice, if any, to be occasioned on the respondent, being delay in the hearing and conclusion of the suit and costs of attendance to defend the application and the applicants’ defence and counterclaim, is, in my view, compensable by way of costs. The issue of delay in hearing and determination of the suit is also capable of being addressed by the court by giving the case priority, if need be. 36.That being my view of the application before me, I exercise the discretionary power given to this Court under Order 12 Rule 7 of the Civil Procedure Rules in favour of the applicants. ELC .NO. E006 OF 2023 Page 17 RULING

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37.The upshot of the foregoing is that l allow the applicants’ application dated 18th April 2026 in terms of prayer (b) and (c). 38.On costs, the same shall abide the outcome of the suit. 39.Orders accordingly. Ruling dated, signed and delivered at Nyahururu this 17th day of September, 2026 through Microsoft teams L. N. WAITHAKA JUDGE In the presence of:Mr Collins Rubia for the Plaintiff / Respondent Mr. Munyiri for the Defendants/ Applicants Court Assistant: Bedan ELC .NO. E006 OF 2023 Page 18 RULING

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