Bwanakali & 11 others v Abeid & another

RULING 1. 2. 3. By the Notice of Motion dated 4th December 2025, Said Mwalimu Mwaboye (the Intended Defendant/ Applicant) prays for orders: 1. ... 2. That the rm of M/s. Wambo Muyala & Company Advocates be granted leave to come on record for Said Mwalimu Mwaboye, the Intended Defendant; 3. That the Honourable Court be pleased to set aside the ex-parte judgment delivered on 20th November 2019 by Hon. Justice C. K. Yano in this matter; 4. That this Honourable Court be pleased to enjoin Said Mwalimu Mwaboye as the proper Defendant in place of the deceased Mwalimu Said Mwaboye; 5. That this Honorurable Court be pleased to grant leave to the enjoined Defendant to le a response and defend the suit on merits; and 6. That the costs of this application be in the cause. The application which is supported by an Adavit sworn by the Applicant is premised inter alia on the grounds: a. That the Defendant – Mwalimu Said Boye passed away on 18th May 1998 long before these proceedings were instituted and judgment entered against him; b. That the person purportedly served with summons was not the Defendant and had no capacity to represent the deceased or participate in these proceedings; c. That as such there was no proper service upon the Defendant and the judgment was obtained in error and misrepresentation; d. That the real and proper party to be sued is Said Mwalimu Mwaboye who is a dierent individual from the deceased; e. That the interest of justice requires that this Honourable Court sets aside the judgment to allow the proper Defendant to be heard on merit; f. That the Applicant will suer great prejudice if the judgment is not set aside; g. That this application is made in good faith and without undue delay upon learning of the ex-parte judgement; and h. That no prejudice will be suered by the Plaintis if the orders sought are granted. The twelve (12) Plaintis are opposed to the application. By their Notice of Preliminary Objection dated 16th February 2026, the Plaintis object to the application on the grounds listed therein as follows: 1. The Notice of Motion dated 4th December 2025 is invalid and incompetent and therefore ungrantable; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5713/eng@2026-09-24 2

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2. That there are three dierent rms of Advocates on record who represented the 1st Defendant in Court, namely;a. Kiume Kioko & Co. Advocates. b. F.M. Mwawasi & Co. Advocates; and c. Jengo Associates Advocates. 3. That the 1st Defendant did not le (an) Appeal against the judgment of Hon. Justice C. K. Yano delivered on 20th November 2019; 4. That on 6th December 2021, the 1st Defendant through Ms. F.M. Mwawasi & Company led in Court an application in which he sought orders of the Court to set aside the ex-parte judgment delivered by the Honourable Court on 20th November 2019; 5. That the said application was on 17th October 2022 dismissed by Hon. Justice L.L. Naikuni and the 1st Defendant did not le an Appeal to the Court of Appeal; 6. That the application dated 4th December 2025 is therefore Res Judicata; 7. That the 1st Defendant is legally barred from instituting and/or ling any proceedings with respect to the issues herein; 8. That the application dated 4th December 2025, as led, contravenes the provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya; and 9. That the entire application dated 4th December 2025 is therefore void ab initio and nonstarter and ought to be struck out with costs to the Plainti. 4. When the Application came up for hearing on 25th February 2026, it was agreed that the Plaintis’ Notice of Preliminary Objection be treated as their Grounds of Opposition. 5. I have accordingly carefully perused and considered the application before me and the response thereto. I have similarly perused and considered the rival submissions as placed before the Court by the Learned Advocates representing the parties. 6. By this application before the Court, one Said Mwalimu Mwaboye urges this Court to set aside the ex-parte judgment delivered herein on 20th November 2019 and to have himself enjoined in the suit as the proper Defendant. The Applicant further urges the Court to grant himself leave to le a response and to defend the suit on merits. 7. According to the Applicant, the said judgment was obtained ex-parte without his knowledge or participation as the party sued as the 1st Defendant, one Mwalimu Said Boye had long passed away on 18th May 1998 before these proceedings were instituted. 8. Without stating his relationship with the said 1st Defendant and/or the suit properties, the Applicant asserts at Paragraph 9 of his Adavit in Support of the application that he is the person intended to be sued and that he is ready and willing to defend the suit on its merits. It is further the Applicant’s case that he stands to suer irreparable loss unless this application is allowed. 9. From the material placed before me and from my perusal of the record, it was apparent to me that this present application had been led in abuse of the Court process. The Applicant does not explain https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5713/eng@2026-09-24 3

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anywhere in his 15 paragraph Supporting Adavit when he came to learn of the judgment delivered herein on 20th November 2019. Neither does he explain why he thinks he is the person who was intended to be sued instead of the 1st Defendant. 10. While the Applicant insists that the 1st Defendant passed away on 18th May 1998, he does not explain why and how the person sued as the 1st Defendant had on 6th December 2021 made an application herein to set aside the same judgment he now urges the Court to set aside. 11. From a perusal of the record herein, it was apparent that by a Notice of Motion dated 6th December 2021, the 1st Defendant had through Messrs. F. M. Mwawasi & Co. Advocates sought orders staying execution of the said judgment and to have the same set aside on account that their previous Advocates Messrs. Kiume Kioko had been taken ill and had not updated them of the proceedings and the judgment. 12. In his 11-paragraph Supporting Adavit, Mwalimu Said Boye who identies himself as the 1st Defendant deposes that they had only recently come to learn of the judgment and that they were shocked to realize that there was no representation on their part during the hearing. It was further his case, like the Applicant herein, that he stood to suer irreparable loss if execution was carried out. 13. Having heard the application and in his Ruling delivered on 17th October 2022, the Hon. Justice L.L. Naikuni dismissed the application with costs. 14. That being the case, it was evident to me that this application being instituted by a dierent party some three (3) years after the previous attempt had been made and without making any reference to the former proceedings reeked of mischief and that the same has been led in abuse of the Court process. 15. It follows that I did not nd any basis for the Motion dated 4th December 2025. The same is hereby dismissed with costs to the Plaintis. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 24TH DAY OF SEPTEMBER, 2026. ………………………… J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Gitonga holding brief for Mr. Asige Advocate for the Plainti c) No appearance Advocate for the Intended Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5713/eng@2026-09-24 4

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