Laban Nduva Masai & Dorcas Mbele v Matunda C.B.O (through Chairman, Secretary & Treasurer)

3. The application is premised on the grounds appearing on its face together with the supporting affidavit of Francis Ndunda Kitheka sworn on even date. The deponent averred that he is the Secretary of the Defendant organization and that together with his Co-defendants, they instructed the law firm of Mutia J.M. & Associates Advocates to enter appearance which they did on 28/11/2024. 4. The deponent further averred that although they had recorded their respective witness statements, they needed the statement of one Joseph Makusa Muthoka since the suit properties were sold by his father Muthoka Itumo. That the said Joseph Muthoka informed the Defendants that he could only record a statement after his application for injunction was heard and determined in MAKUENI ELCLC NO. E012 OF 2024. The deponent contended that Joseph Muthoka’s application for injunction was determined on 20/3/2025 and thereafter he recorded his statement on 24/4/2025. 5. It was the Applicants’ contention that even though they were ready to file their documents, their advocates informed them that the court had already issued directions that the suit proceeds for formal proof. The deponent further contended that they had not been served with a mention notice when the directions were taken. He averred that they have a defence which raises triable issues. 6. The Applicant was of the view that this suit is likely to be affected by the outcome of MAKUENI ELCLC NO. E012 OF 2024 since the land in question emanates from the suit properties herein. He urged the court to stay these proceedings pending the hearing and determination of the other suit. 7. Opposing the application, Laban Nduva Masai swore a replying affidavit on 8 th July, 2025 on his behalf and that of his Co-plaintiff. He averred that the Defendants were served with the plaint and summons to enter appearance on 15th November, 2024 and that they had a fifteen-day window to file a defence as ELC NO. E025 OF 2024 2|Page

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per the law. It was contended that the Defendants did not file a statement of defence within the stipulated time and upon an application being made to the court, on 24th February, 2025 it was directed that the matter proceed by way of formal proof on 29th May, 2025. 8. The deponent contended that on 5th May, 2025, the Defendants were duly served with a hearing notice and only waited until 28 th May, 2025, a day to the hearing, to file the instant application. He further contended that the annexed draft defence does not raise any triable issue and only consists of issues which have been determined by the court vide the ruling of 5 th March, 2018. He added that the Defendants have not provided sufficient cause as to why they failed to file a defence within the stipulated time. He urged the court to dismiss the application with costs. 9. The application was canvassed by way of written submissions. The Applicants filed their submissions dated 21st April, 2026 whereas the Respondents filed their submissions dated 20th April, 2026. 10.On behalf of the Applicants, Counsel contended that the delay in filing their defence was not intentional as the Defendants were trying to secure the statement of a crucial witness for their defence. Relying on the case of Shuma v Ochume [2025] KEHC 4397 (KLR), Counsel contended that it would be an injustice to deny the Applicants their day in court. 11.On whether the court should stay these proceedings, Counsel was of the view that the issues in MAKUENI ELCLC NO. E012 OF 2024 relate to MACHAKOS/ULU/450 and MACHAKOS/ULU/451 whereas the matter herein relates to parcels of land emanating from the suit properties in the other suit. That both suits are based on the disputed ownership and occupation of the land. It was further argued that the Plaintiffs in this suit are the Defendants in the other suit and that the Applicants herein and the Respondents share a ELC NO. E025 OF 2024 3|Page

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derived legal interest as buyers of the parcel of land. Lastly, it was submitted that the Respondents have been sued in the other suit in their capacity as persons claiming ownership of the parcels of land and therefore, as buyers of the same parcels of land, the Applicants would be bound by any litigation involving the property. 12.Counsel for the Respondents submitted that the Applicants had not provided any excusable reasons for failing to file their defence on time. That the grounds of waiting for an outcome of an independent interlocutory application in another suit is not enough to invite the court’s discretion to set aside the order that the matter proceed to formal proof hearing. Counsel urged the court to dismiss the application with costs. 13.Having considered the application, the replying affidavit and the rival submissions, the apparent issues for determination are as follows: a) Whether the Applicants have demonstrated that the court should exercise its discretion to set aside the directions issued on 24 th February, 2025; and b) Whether the instant proceedings should be stayed pending the hearing and determination of MAKUENI ELCLC NO. E012 OF 2024. 14.The Applicants contended that the Respondents did not serve their firm of advocates, Mutia J.M. & Associates with a mention notice for the date when directions were issued for case to proceed for formal proof hearing. Indeed, it is clear from the record that the Defendants filed a memorandum of appearance on 28th November, 2024 through their advocates on record. The Civil Procedure Rules, 2010 outline under Order 7 Rule 1 that the Defendants shall have fourteen days to file a statement of defence after a memorandum of appearance has been filed. ELC NO. E025 OF 2024 4|Page

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15.A defence was not filed by the Applicants within the stipulated period and thus, the Plaintiffs procedurally filed a request for interlocutory judgment on 17 th January, 2025 and a date for formal proof hearing was therefore correctly taken on 12th March, 2025 albeit wrongly referenced 24th February, 2025 by the Applicants in their prayer number (2). 16.The Applicants contended that this suit is closely related to MAKUENI ELCLC NO. E012 OF 2024 wherein the Plaintiffs’ claim to ownership of land parcels numbers Machakos/Ulu/450 and Machakos/Ulu/451 is in question. It is the Applicants’ contention that a critical witness to their defence of this case happens to be the Plaintiff on the other suit and that their defence and statements were centered around the outcome of the interlocutory application in MAKUENI ELCLC NO. E012 OF 2024 which was decided vide the ruling delivered on 20th March, 2025. 17.Again, the Applicants contended that they were able to procure the statement of the Plaintiff in MAKUENI ELCLC NO. E012 OF 2024 and had annexed a copy of the same dated 24th April, 2025 vide Exhibit ‘FNK-2’. 18.After careful consideration of the reasons for failure to file a defence within the stipulated period by the Applicants, the court finds that the said reasons are excusable. A draft statement of defence was also annexed as Exhibit ‘FNK-3’ and the same comprises of triable issues as can be gleaned from paragraphs 4 and 10 thereof. 19.This court is therefore satisfied that no prejudice will be occasioned to the Respondents if the orders to proceed with the matter in formal proof hearing are set aside and the Defendants unconditionally granted leave to file their statement of defence and pre-trial documents. Evidently, the Applicants have demonstrated willingness to promptly put their house in order. ELC NO. E025 OF 2024 5|Page

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20.On the application for stay of the instant proceedings, it must be borne in mind that the onus lies with the Applicants to convince this court why such discretion should be exercised in their favour. 21.In Marriot Africa International Ltd v Margaret Nyakinyua Marigu & 4 Others, CA No. Nai. E152 of 2022, the Court of Appeal aptly held as follows:“Whilst this Court has unfettered jurisdiction to issue an order of stay of proceedings, it must be satisfied that there are genuine and compelling grounds to justify such an order, whose effect may be to undermine one of the fundamental constitutional principles, namely that justice shall not be delayed.” 22.The considerations to be made by the court in determining an application for stay of proceedings were outlined in the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] eKLR in the following manner: “To my mind, the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles; a. Whether the applicant has established that he/she has a prima facie arguable case. b. Whether the application was filed expeditiously and c. Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.” 23.The Applicants have not demonstrated the basis of stay of the proceedings in this case. I therefore allow prayers 2 and 4 of the application dated 28 th May, 2025. The Defendants to file their statement of defence and witness statements within 14 days. ELC NO. E025 OF 2024 6|Page

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It is so ordered. ............................................ HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Ombati for Plaintiff/Respondent. Ms. Ngumbau for Mr. Mutia for Applicant. Court assistant – Kilonzo & Musyoki ELC NO. E025 OF 2024 7|Page

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