Evan Kamau Muturi v Joyce Wanjiru Muturi, Edith Ng'endo Muturi, Winfred Wanjiru Muturi & Peter Ndungi Njoroge

b) THAT this execution honorable of all that Court be Ex-parte pleased to stay Judgment and all consequential orders thereto as against the Defendants pending the inter-parties hearing of this application. c) THAT this honorable Court be pleased to set aside all those Ex-parte proceedings, Ex-parte Judgment, and allow the Defendants/Applicants to file their respective defenses to the claim. d) THAT this honorable Court be pleased to make appropriate orders that fit the circumstances. e) THAT the costs of this application be borne by the Plaintiff. 2) The Application is supported the Affidavit of Joyce Wanjiru Muturi sworn on even date. The application is grounded on the assertion that the Plaintiff fraudulently obtained an Exparte Judgment against his own family members including his mother, the 2nd Defendant by falsely claiming to have served them with summonses, despite the suit property, LR 6782/36 originally L.R. 6782/16 Kiambu, lawfully belonging to the estate of the late Josphat Muturi Njoroge. The Applicants contend that while the property was legally distributed to the deceased's beneficiaries under a confirmed grant issued in Nairobi Succession Cause No. 1725 of 2006 by Justice A.O. Muchelule, the Plaintiff concealed that a duplicate grant he fraudulently obtained in Kiambu ELCLC NO. E200 OF 2024 Succession Cause No. 31 of 2019 was 2|Page

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subsequently revoked. Given that the Defendants actively reside on and have extensively developed the land, they argue that the Plaintiff committed perjury and misled the Court, and emphasize that failing to set aside the Ex-parte proceedings and Judgment will cause them severe and irreparable loss. 3) Joyce Wanjiru Muturi, the 1 st Defendant/Applicant, depones that land parcel LR 6782/36 originally L.R. 6782/16 Kiambu belongs to the estate of her late husband, Josphat Muturi Njoroge, who died on 12/08/2004, leaving behind three wives namely Hannah Wanjiku Muturi (1st wife), Edith Ngendo Muturi (2nd wife, 2nd Defendant), and the Deponent (3 rd wife) alongside nineteen children, including the Plaintiff, Evans Kamau. The Deponent states that the estate was lawfully distributed pursuant to a confirmed grant in Nairobi Succession Cause No. 1725 of 2006, attached as “Annexure JWM 1”, following which the beneficiaries retained a surveyor to proceed with the mutation process as evidenced by the instructions letter marked as “Annexure JWM 2”. 4) The Deponent reveals that around 2021, the Plaintiff secretly instituted Kiambu Succession Cause No. 31 of 2019, falsely holding himself out as the sole heir, obtaining a green card, and securing a confirmation of grant, as shown in the petition and grant attached as “Annexure JWM 3(a) & (b)”. Upon discovering this, the Applicants successfully ELCLC NO. E200 OF 2024 3|Page

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applied for revocation of the said grant and certificate of confirmation, which were nullified vide a Ruling dated 21/12/2021, produced as Annexure JWM 4. 5) Despite this nullification, the Plaintiff obtained an Ex-parte Judgment and decree in the present suit without serving any Court pleadings upon the Applicants. The Applicants only became aware of the suit when summoned by the OCS Tigoni and handed execution documents, including warrants of attachment attached as Annexure JWM 5. Subsequent registry searches revealed not only this suit but also a similar matter, Thika ELC E134 of 2024, which was later withdrawn. The Deponent further points out that the Plaintiff is actively pressing the OCS Tigoni for their forcible eviction, as demonstrated by his letter dated 21/04/2026, produced as “Annexure JWM 6”. 6) The Deponent asserts that the Applicants reside on and have extensively developed their matrimonial homes on the suit land, as depicted in the photographs attached as “Annexure JWM 8”. They contend that they have a highly merited defense and counterclaim seeking the cancellation of the Plaintiff's illegally acquired title deed and subdivisions, a draft whereof is marked as Annexure JWM 7. Invoking the principles of natural justice and the Court's duty to safeguard proprietary interests against an imposter who has repeatedly misled judicial forums, the Deponent prays that the Ex-parte ELCLC NO. E200 OF 2024 4|Page

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proceedings and execution orders be set aside to avert severe and irreparable prejudice. 7) In opposition to the Notice of Motion Application the Plaintiff/Respondent filed a Replying Affidavit sworn on 30/06/2026 by Evans Kamau Muturi asserting that the application is incompetent, frivolous, and a blatant abuse of Court process. The Deponent contends that the Defendants were repeatedly served with the Plaint, Summons to Enter Appearance, and subsequent hearing notices, culminating in a specific Court order issued on 22/10/2025 authorizing service through the Chief of Tigoni Location and the OCS Tigoni Police Station, as evidenced by the Court order marked as Annexure EKM 1. 8) Regarding procedural history, the Deponent clarifies that the withdrawal of Thika ELC Case No. E134 of 2024 on 7/08/2026 was done with leave of Court for proper reinstitution, relying on the e-filing extract and tracking summary attached as “Annexure EKM 3”. On the substantive question of ownership, the Deponent refutes reliance on Nairobi Succession Cause No. 1725 of 2006, stating that the suit property LR 6782/36 originally L.R. 6782/16 Kiambu Limuru Sub-County, was inter vivos transferred to him by his late father on 3/10/1995 nearly a decade before his death as demonstrated by the transfer and consent documents produced as “Annexure EKM 4”. He substantiates his registered title by producing stamp duty ELCLC NO. E200 OF 2024 5|Page

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payment receipts of Kshs. 2,000,000/= marked as “Annexure EKM 5”, along with official search documents, clearance certificates, and payment receipts marked as “Annexure EKM 6”. He affirms that service was fully executed with local administrative and police assistance, producing Court orders and Affidavits of Service sworn by licensed process server George W. Ndonye (CPS No. 2584) marked as “Annexure EKM 2”. The Deponent highlights that the Defendants expressly admitted receipt of eviction notices via Karamba-ini Police Station but willfully elected not to participate in Court proceedings under the mistaken belief that his claim would fail, arguing that such deliberate indolence disentitles them from setting aside a regular Judgment. 9) The Deponent further reveals that prior to his father’s passing, the 1st Defendant was bequeathed her own parcel, LR 6782/36 originally L.R. 6782/16 Kiambu, in trust for the other Respondents, as evidenced by the transfer document attached as “Annexure EKM 7”, meaning the suit land formed no part of the deceased's estate available for distribution in probate. He dismisses the Defendants' postconfirmation survey as legally futile, noting that the surveyor irregularly addressed correspondence to a deceased person, as shown in the letter marked as “Annexure EKM 8”. Emphasizing that this Court exercises jurisdiction over land title and ELCLC NO. E200 OF 2024 occupation under Article 162(2)(b) of the 6|Page

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Constitution rather than acting as a probate Court, the Deponent submits that the draft defense discloses no triable issues or particulars of fraud under Order 2 Rule 10 of the Civil Procedure Rules. Producing the extracted decree delivered on 2/03/2026 as “Annexure EKM Deponent prays application that the Defendants' 9”, the be dismissed with costs, and that police assistance through the OCPD Limuru Police Station be maintained to execute the eviction decree. Issues for Determination 10) Having carefully considered the Notice of Motion dated 23/04/ 2026, the Supporting Affidavit of Joyce Wanjiru Muturi, and the Replying Affidavit of Evans Kamau Muturi sworn on 30/06/2026, the following key issues fall for determination: 1. Whether the Ex-parte proceedings and default Judgment delivered on 2nd March 2026 were obtained regularly or irregularly (i.e., whether service of summons to enter appearance and pleadings was properly effected on the Defendants/Applicants). 2. Whether the Applicants have established sufficient grounds to set aside the Ex-parte Judgment and decree (i.e., whether the Applicants demonstrate an excusable explanation for non-appearance and/or raise bona fide triable ELCLC NO. E200 OF 2024 7|Page

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issues in their proposed Defense and Counterclaim). 3. Whether an order staying execution of the Exparte Judgment and decree should issue pending the hearing and determination of the main suit. 4. Who should bear the costs of this application? Analysis and Determination 11) The Applicants assert that they were never served with the Summons to Enter Appearance, Plaint, or any hearing notices, and only learned of the suit when handed eviction documents by the OCS Tigoni. Conversely, the Plaintiff asserts that service was regularly executed via police assistance under a Court order issued on 22/10/2025, producing affidavits of service sworn by process server George W. Ndonye. 12) The principle of natural justice specifically the right to be heard audi alteram partem guaranteed under Article 50(1) of the Constitution requires that a party against whom an adverse judicial decision is sought must be given adequate notice and an opportunity to respond. 13) The distinction between a regular and an irregular default Judgment dictates the Court's remedial framework. Where default Judgment is obtained without proper service, it is irregular and must be set aside ex debito justitiae as a matter of right, without requiring the Applicant to demonstrate a defense on the merits. ELCLC NO. E200 OF 2024 8|Page

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14) As observed by the Court of Appeal in James Kanyiita Nderitu & Another v. Marios Philotas Ghikas & Another [2016] eKLR: "From the outset, it is necessary to make a distinction between a regular and an irregular default Judgment. In a regular default Judgment, the Defendant will have been duly served with summons to enter appearance or for service out of jurisdiction, but fails to enter appearance or file a defence within the prescribed time... 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." 15) Even assuming arguendo that service was regularly executed via police assistance, a Court exercising its unfettered discretion under Order 10 Rule 11 of the Civil Procedure Rules must ensure that procedurally strict default steps do not lock out genuine disputants who were unaware of the actual suit. 16) A meticulous examination of the record reveals that the Plaintiff relied on substituted service via local administration and police. However, where a party's physical residence on the suit property is acknowledged and uncontested, effective ELCLC NO. E200 OF 2024 9|Page

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personal service remains the primary constitutional baseline under Article 50(1) of the Constitution, which guarantees the right to a fair hearing. The Applicants were never afforded a genuine opportunity to be heard prior to the entry of Judgment. Even if treated as nominally regular on the record due to the process server's affidavit, the circumstances surrounding substituted service on family members residing on ancestral land render the resulting Ex-parte Judgment procedurally suspect and subject to the Court's inherent jurisdiction to set aside. 17) I have noted from the annexures by the Respondent, contradictory proprietary documents which may give rise to there being triable issues that will call for a setting aside of this Court’s Ex parte Judgment. 18) The substantive baseline of the Plaintiff’s suit rests upon an alleged inter vivos transfer in respect of L.R. No. 6782/16 Limuru, purportedly executed in his favour by his deceased father, the late Josephat Muturi Njoroge, on 3/10/1995. However, a critical examination of the Plaintiff’s own annexures juxtaposed against the judicial records exposes grave evidentiary discrepancies that strike at the core of the suit, giving rise to bona fide triable issues. 19) First, a glaring chronological anomaly arises from the documentary evidence adduced by the Plaintiff. While the Plaintiff relies on official stamp duty payment receipts marked as “Annexure EKM 5” to validate the alleged 1995 ELCLC NO. E200 OF 2024 10 | P a g e

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transaction, the official revenue and statutory clearance receipts continue to be issued in the name of the deceased, Josephat Muturi Njoroge, as late as the year 2023. It strains legal logic that statutory instruments and land ownership tax liabilities would routinely reflect the name of the deceased nearly two decades post his demise on 12/08/2004, and almost twenty-eight years following the alleged inter vivos transfer. 20) Second, the propriety of the Plaintiff's claim is further impugned by conflicting succession proceedings. The Applicants have tendered cogent evidence establishing that the estate of the late Josephat Muturi Njoroge was subjected to due process of administration and lawfully distributed pursuant to a Confirmed Grant of Letters of Administration issued in Nairobi Succession Cause No. 1725 of 2006 as per Muchelule J, as he then was). Conversely, the parallel succession proceedings covertly initiated by the Plaintiff in Kiambu Succession Cause No. 31 of 2019 were formally annulled and set aside vide a Ruling delivered on 21/12/2021, wherein the honorable Court found the Plaintiff guilty of material non-disclosure, misrepresentation of facts, and deliberate suppression of material truth. 21) These glaring discrepancies demonstrate that the draft Defense and Counterclaim annexed by the Applicants as shown in Annexure JWM 7 is neither a sham nor a mere denial; it raises fundamental triable issues regarding the ELCLC NO. E200 OF 2024 11 | P a g e

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validity of the registered title, potential fraud, and the lawful administration of the deceased's estate. 22) In evaluating an application to set aside a default Judgment, the Court is not required to determine the ultimate truth or merits of the defense at this interlocutory stage, but merely whether the defense raises triable issues. 23) Under Order 10 Rule 11 of the Civil Procedure Rules, 2010, the Court is vested with broad, discretionary powers to set aside or vary default Judgments upon terms that are just as stated hereunder: “Where Judgment has been entered under this Order, the Court may upon the application of nay party set aside or vary such Judgment, and any consequential orders, upon such terms as may be just.” 24) In Tree Shade Motors Ltd v. DT Dobie & Company (Kenya) Ltd & Another [1998] KECA 40 (KLR), the Court of Appeal stated: "If the defense raises even one triable issue, the Defendant must be given leave to defend the suit. The Court’s discretion is properly exercised only after examining the draft defense to determine if it raises a valid or reasonable defense, and not by looking at the merits of the case at this stage." ELCLC NO. E200 OF 2024 12 | P a g e

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25) Where glaring documentary inconsistencies and questions of fraudulent acquisition exist, shutting the Court's doors to the Applicants would cause severe injustice. As Sir William Duffus P. observed in Patel v. EA Cargo Handling Services Ltd [1974] EA 75, that: "The main concern of the Court is to do justice to the parties, and the Court will not impose conditions on itself to fetter the wide discretion given it by the rules... The discretion is intended so to be exercised to avoid injustice or hardship..." 26) Similarly, in Shah v. Mbogo [1967] EA 116, the Court of Appeal for East Africa affirmed: "This discretion to set aside ex parte proceedings or decision 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." 27) In the present case, the Applicants reside on and have extensively developed the suit property. Dispossessing them through an Ex-parte eviction decree based on contradictory title documents without testing the evidence on trial would occasion irreversible prejudice and gross injustice. ELCLC NO. E200 OF 2024 13 | P a g e

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28) Whether an Order Staying Execution of the Ex-parte Judgment and Decree Should Issue to Allow Defendants File Their Defense and Counter-Claim. The entry of an Ex-parte Judgment carried with it an execution decree and impending warrants of eviction targeting the Applicants' residential and matrimonial homes. If execution proceeds while the default Judgment is set aside, the Applicants will suffer irreparable harm and rendering the suit nugatory. 29) Where a Court finds that a default Judgment ought to be set aside to enable a party to defend a land dispute, an order staying execution flows as an essential consequential remedy under Section 1A and 1B of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules. Preserving the status quo on the land ensures that the subject matter of the litigation remains intact while the parties litigate their rights on an equal footing. 30) As already stated, the primary duty of the Court is to ensure substantive justice prevails over procedural technicalities. Therefore, in this case, where a default Judgment deprives a party of ancestral or residential land based on contested transfers and revoked succession grants, the interests of justice demand that the Judgment be set aside to allow a full, inter-parties hearing on the merits. 31) On the issue of costs, while costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the context of this suit involves an intra-family dispute over ELCLC NO. E200 OF 2024 14 | P a g e

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ancestral land coupled with technical default issues surrounding service. In the exercise of the Court's discretion, ordering costs to abide the outcome of the main suit encourages both parties to focus on resolving the substantive merits of the title dispute without compounding financial hostility at this interlocutory stage. 32) Having evaluated the application, the Replying Affidavit, the attached statutory exhibits, and the applicable law: i) The Notice of Motion dated 23/04/2026 is hereby allowed. ii) The Ex-parte proceedings and default Judgment delivered on consequential warrants 2/03/2026, orders, issued together decrees, and therefrom with all eviction against the Defendants/Applicants, are hereby set aside. iii) Stay of execution of the Ex-parte Judgment and decree in respect of land parcel LR 6782/36 originally L.R. 6782/16 Kiambu is hereby granted pending the full hearing and determination of this suit inter-parties. iv) Leave is hereby granted to the Defendants/Applicants to file and serve their memorandum of appearance, statement of defense, and counterclaim (in terms of the draft ELCLC NO. E200 OF 2024 15 | P a g e

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annexed as JWM 7) within fourteen (14) days from the date of this Ruling. v) The Plaintiff/Respondent shall be at liberty to file and serve a Reply to Defense and Defense to Counterclaim within fourteen (14) days of service. vi) Costs of this application shall abide the outcome of the main suit. vii) Noting that the suit property is situated in the territorial jurisdiction of the Limuru Environment and Land Court, I do transfer this file to the Limuru Environment and Land Court for hearing of the main suit. 33) It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT THIKA ON THIS 21ST DAY OF SEPTEMBER 2026. …………………… MOGENI J JUDGE In the presence of: Mr. King’ang’i for the Plaintiff Mr. Ruigu for the 1st, 2nd, 3rd and 4th Defendants Mr. Melita - Court Assistant …………………… MOGENI J ELCLC NO. E200 OF 2024 16 | P a g e

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JUDGE ELCLC NO. E200 OF 2024 17 | P a g e

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