Andrew Kimani Nganga & 2 others v Peter Njuguna Ngugi & 5 others

4. 5. b). That the Honourable Court be pleased to set aside the proceedings in this case for lack of jurisdiction. c). That the Honourable Court be pleased to set aside the judgment on admission entered on 5th April, 2016. d). That the Honourable Court be pleased to stay further proceedings in this suit pending hearing and determination of this application. e). That cost of this application be in the cause. The application is premised on the following grounds;(a) That the 4th to 6th defendants were served with a copy of the plaint and summons to enter appearance on 30th April, 2013. (b) That the 4th to 6th defendants proceeded to file a statement of defense on 29th May, 2013. (c) That the 4th to 6th defendants filed a list of and bundle of documents dated 13th June, 2013, list of witnesses dated 13th June, 2013 and a witness statement dated 17th June, 2013 and all filed in Court on 21st June, 2013. (d) That from the filings before the Court, it is clearly evident that the 4th to 6th defendants are desirous of defending this suit to its logical conclusion. (e) That on 17th June, 2014, the 4th to 6th defendants filed a Notice of Motion application seeking leave to withdraw some of the earlier pleadings filed by the 4th to 6th defendants. (f) That the said Notice of Motion dated 6th June, 2014 and filed on 17th June, 2014 has never been canvassed by the court to be allowed or dismissed. (g) That from the court records, it is evident that a judgment on admission was entered against the 4th to 6th defendants on 5th April, 2016. (h) That the Notice of Motion application by the plaintiff dated 6th November, 2014 at paragraph 7 of the supporting affidavit purported to rely on the application by the 4th to 6th defendants which application had not been set down for hearing. (i) That the plaintiff served a plaint filed "In the Environment and Land Court at Nairobi” but proceeded to list it for hearing at the Civil Division of the High Court. (j) That the failure to file this application timeously was based on the fact that we were served with a hearing notice dated 25th May, 2018 and served on 29th May, 2018 stating that the suit was listed for formal proof on 18th June, 2018. (k) That it is in the interest of justice that the judgment on admission and the entire proceedings in this matter be set aside and the applicants be allowed to participate in the proceedings in a court seized with jurisdiction and call evidence in the suit. (l) That the court that issued the judgment on admission had no jurisdiction under Article 165(5) (b) of the Constitution. The application was further supported by the affidavit of Edwin Munoko Wafula a Senior Land Registration Officer working in the office of the Chief Land Registrar annexing the defense and statement recorded by himself for and on behalf of the 4th, 5th, and 6th Defendants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 2

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6. The application is opposed by the plaintiffs through the affidavit of Charles Mwangi Gachicho their advocate contents of which this court has fully noted and considered. 7. The parties filed written submissions in support of their rival arguments in this matter. The Hon. Attorney General's Case 8. The Attorney General submits that the grounds of entering the judgment on admission were premised on an application that has never been canvassed before the Court, and has therefore never been allowed or dismissed. The judgment in admission was therefore erroneously entered. The judgment was therefore irregular as it did not rely on admissions that are conclusively clear, unambiguous, and unconditional. 9. The Hon AG relied on the case of Tea Board of Kenya vs. Gideon Asirigwa Mbagaya (2015) eKLR where the Court of Appeal reiterated the decisions of Agricultural Finance Corporation vs. Kenya National Assurance Company Limited (In receivership) (1997) eKLR, where the Court of Appeal held that:“ Final Judgment ought not to be passed on admissions unless they are clear, unambiguous and unconditional (emphasize supplied). A Judgment on admission is not a matter of right; rather it is a matter of discretion of the Court and where a defendant has raised objections which go to the very root of the case, It would not be proper to exercise this discretion". 10. The applicant further cited the case of Herta Elizabeth Charlotte Nazari vs. Herta Elizabeth Charlotte Nazarl (1984) eKLR where the Court of Appeal held that:“ Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact had been made whether on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter the judge must neither become disinclined nor lose himself in the jungle of words even when faced with a plaint such as the one in this case. To analyse pleadings, to read correspondence and to apply the relevant law is a normal function performed by judges which has become established routine in the courts. We must say firmly that if a judge does not do so, or refuses to do so, he fails to give effect to the provisions of the established law by which a legal right is enforced". 11. The Attorney General further submitted that the Notice of Motion seeking to expunge the witness statements and the list and bundle of documents has never been set down for hearing and until the application is dispensed with the impugned documents remains on record. Further, at no point has the Attorney General admitted fraud or misrepresentation in respect of the suit land or admitted the claim for special damages to be the basis of the impugned judgment on admission entered on 5th April, 2016. 12. The applicant further cited the case of James Kanylita Nderitu & another vs. Marlos Philotas Ghikas & another (2016) GKLR whwere the Court of Appeal held as follows in regard to irregular judgments:“ 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. The court does not even have to be moved by a party once it comes to its notice that the Judgment Is Irregular: It can set aside the default Judgment on its own motion. In addition, the court will not venture into considerations of whether the Intended https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 3

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defense raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such Judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations" 13. The applicant thus argued that the judgment obtained by the plaintiff should therefore be set aside as a matter of right and the defendants accorded a chance to present their case and adduce evidence as a fundamental principle of fair hearing. 14. According to the applicant, the plaintiff served a plaint filed "In the Environment and Land Court at Nairobi" but proceeded to list the matter for hearing at the Civil Division of the High Court. The Court that thus issued the Judgment on admission had therefore no Jurisdiction under Articles 165(5) (b) of the Constitution, and it is therefore in the interest of Justice that the judgment on admission and the entire proceedings in the matter be set aside and the applicants be allowed to participate in the proceedings. 15. The applicant went on to argue that for reason of lacking jurisdiction, the proceedings made therewith the irregular judgment were also a nullity, and should be set aside from the record of the Court. 16. The applicant cited the Supreme Court decision in Republic vs. Karisa Chengo & 2 others (2017) eKLR where the court held as follows:“ None of these foreign cases, attractive their reasoning is related to the issue of the jurisdiction of the Courts that determined the cases under review. As we know, jurisdiction goes to the root of any litigation. This position was forcefully reiterated in the locus classicus decision of Nyarangi, J.A in The Owners of Motor vessel Lilian "S" v. Caltex Oil Kenya Ltd. [1989] KLR 1 that "jurisdiction is everything." Without it a Court cannot make a move. Lack of jurisdiction thus renders a Court's decision void as opposed to it being merely voidable. 17. The applicants thus argued that when an act is void, it is a nullity ab initio and it cannot found any legal proceedings. The applicants also relied on the decision of Lord Denning in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK)[1962] AC 152 succinctly makes this point. He stated thus: “ Court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the Court..."And; "If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse." 18. The Attorney General submitted that the right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. The 4th-6th Defendants filed a statement of defense on 29th May, 2013, filed a list and bundle of documents dated 13th June, 2013, list of witnesses dated 13th June. 2013 and a witness statement dated 17th June, 2013 all filed in court on 21st June, 2013. It is therefore clearly evident that the 4th-6th Defendants are desirous of defending this suit to its logical conclusion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 4

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19. The Attorney General submits that the Notice of Motion dated 6th June, 2014 that is relied upon by the plaintiffs as the basis of the alleged admission never sought to amend the 4th 5th and 6th defendants’ statement of defense dated and filed on 29th May, 2013. 20. The Court of Appeal in the case of James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another (Supra) cited the Supreme Court of India where it underlined the importance of the right to be heard as follows in Sangram Singh vs. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:“ There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them" 21. The judgment on admission entered on 5th April, 2016 should therefore be set aside as it is an irregular judgment, having been obtained on basis of an admission that is not clear, unambiguous and unconditional. The judgment was also entered on grounds of an application that has never been heard and determined, and the documents sought to be withdrawn are therefore still in record. 22. The Honourable Attorney General further submitted that the fact of the judgment on admission having been entered only became apparent 18th June, 2018 and the present Notice of Motion Application has been made timeously thus the applicant urges the Honourable Court to set aside judgement on admission entered on 5th April, 2016 noting that no evidence has been tendered by the plaintiffs so far in the matter any Prejudice can be compensated by way of costs. Plaintifis /respondents Case 23. The record contains two sets of submissions one by the 1st plaintiff dated 23rd May 2025 in opposition to the application to set aside judgment on admission and another set of submissions for all the plaintiffs dated16th September 2019 opposing the motion dated the 22nd June 2018 seeking the setting aside of judgment on admission entered on 5th April 2016. 24. The plaintiffs’ submissions are in opposition to the application dated 19th April 2024 (read 22nd June 2018) brought by the 4th, 5th and 6th defendants. The application seeks review of a judgment entered on 5th April 2016 and a stay of the formal proof proceedings scheduled herein. 25. The respondents argue that the application is a textbook example of procedural abuse, brought nearly a decade after judgment was entered, and without any new evidence, legal merit, or justifiable cause. It is a thinly veiled attempt to reopen settled issues through the backdoor of review, contrary to the express limits of Order 45 Rule 1 of the Civil Procedure Rules. 26. According to the respondents the judgment sought to be impugned was based on a witness statement prepared and filed by the applicants themselves, which remained on record unchallenged for years thus the applicants' belated objections are neither grounded in fact nor supported in law. 27. The respondents further contended that what the defendants seek is not justice, but delay considering the period of time that has lapsed since the entry of judgment. 28. This Honourable Court is urged to protect the integrity of its process and dismiss the application with the finality it deserves. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 5

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29. The plaintiffs/respondents, relied on the affidavit of Andrew Kimani Nganga dated 29th May 2024, to oppose the application as lacking merit, having been filed with inordinate delay, and intended solely to frustrate the plaintiffs' right to justice. 30. The respondents posed the following questions for determination; i). Whether the application meets the legal threshold for review of the judgment or admission. ii). Whether the judgment on admission based on a witness statement was regular; and iii). Whether the grant of the orders sought would prejudice the Plaintiffs. 31. On whether the application meets the threshold for review of the judgment on admission, the respondents submitted that the scope of review under Order 45 Rule 1 of the Civil Procedure Rules is strictly circumscribed and is not intended to provide an avenue for parties to re-argue matters that were within their knowledge or ought to have been raised at the time of hearing. 32. Review may only be granted where there is discovery of new and important evidence which, after due diligence, was not within the knowledge of the applicant; where there is a mistake or error apparent on the face of the record; or where there exists any other sufficient reason. The courts have consistently held that an error must be self-evident and not one that requires elaborate argument or interpretation, as affirmed in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR. 33. The respondents argued that in the present case, the applicants seek review of a judgment entered in 2016 based on a witness statement filed by them in 2013. Their claim of error is not new, nor is it one that escaped their attention; rather, it is an argument that ought to have been made at an appellate Court. No reason has been provided to explain why the decision was not appealed against. As such, this application does not meet the legal threshold for review and amounts to an abuse of process intended to delay the course of justice. 34. On whether the judgment on admission based on a witness statement was regular, the respondents submitted that the applicants allege that the court relied on erroneous witness statements and that they were not granted an opportunity to contest the same. The Applicant's question is whether a Court can rely on a witness statement to grant judgment on admission. 35. The respondents posit that yes, a court can rely on a statement to enter judgment on admission. The respondents relied on the case of East African Cargo Logistics v Eden Transport and Logistics Limited (Civil Appeal E098 of 2021) [2024] KECA 413 (KLR) (26 April 2024) (Judgment) where the Court of Appeal relied of a witness statement to grant judgment on admission. 36. Further, Majanja J in Gregori International v Ministry of Sports, Culture and Arts & 2 others (Civil Case E100 of 2020) [2022] KEHC 11445 (KLR) (Commercial and Tax) (30 June 2022) (Ruling) rejected the argument that a witness statement could not be relied upon in support of a claim for judgment. 37. The respondents further asserted that no claim had been made that the maker of the witness statement had his statement forged. No claim has been made that his statement was extracted through coercion, duress, or that he had no authority to prepare the same. Similarly there was no claim that the statement was unclear or equivocal. Whoever prepared it intended for it to be read by the Court and taken as the truth of what happened. Thus, the claim that the witness statement could not be relied upon is ridiculous according to the plaintiff respondents. It is also unsupported by settled case law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 6

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38. On whether granting the orders sought would prejudice the plaintiffs/respondents, the respondents maintain that they have to been significantly prejudiced by the defendants' application, which seeks to reopen a matter that has been pending for over a decade. 39. They have already suffered substantial financial loss, including payment of the full purchase price, accrued bank loan interest, legal fees, and other related costs arising from the fraudulent transaction. Allowing the application would delay the formal proof proceedings, deny the plaintiffs the opportunity to obtain final redress, and prolong an already burdensome litigation process. Continued delay would undermine the constitutional guarantee of expeditious and fair determination of disputes under Article 159(2)(b) of the Constitution of Kenya. 40. The respondents relied on the case of Kenya Power & Lighting Co. Ltd v Abdulhakim Mohamed Omar [2021] eKLR, where the court emphasized that interlocutory applications should not be used to derail substantive justice. 41. In conclusion, the respondents argued that the applicants had failed to meet the legal threshold for review as set out under Order 45 Rule 1 of the Civil Procedure Rules. Their argument is not based on any new or important matter discovered after the judgment, nor is it founded on an error that is apparent on the face of the record. The witness statement at the heart of the complaint was filed by the applicants themselves in 2013. Their claim of error is neither novel nor inadvertent-it is a legal argument that ought to have been raised on appeal. No explanation has been offered as to why the decision of 5th April 2016 was not appealed. 42. The respondents contended that what is now framed as a review is in reality a disguised appeal intended to reopen issues long settled. The application is not only legally incompetent but also an abuse of the court process, and it must therefore be dismissed with costs. 43. Finally, according to the respondents the applicants aver that the plaintiffs/respondents' application giving rise to the entry of the judgment on admission was premised on the defendants notice of application dated 17.6.2014 which had not been set down for hearing and that the Honourable court lacked jurisdiction to deal with the matter. 44. The respondents submitted that by a ruling delivered on the 4th day of April 2019, the Honourable court ruled that the plaintiff's suit is not a land matter and squarely falls within the jurisdiction of this Honourable court. That ruling has not been overturned by any appellate court of competent Jurisdiction. The respondents therefore contended that the issue of jurisdiction is now res judicata. 45. The respondents urged this court that for the above reasons and the other matters raised in their grounds of opposition and replying affidavit and the ruling of the Honourable court made on 4.4.2019, this court should dismiss the application with costs to the plaintiffs /respondents as the same is legally incompetent and is devoid of any merit. Analysis And Determination 46. The Court of Appeal in Owners of Motor Vessel Lillian S Vs. Caltex Oil Kenya Ltd (1989) eKLR held that jurisdiction is everything and without it a court must down its tools. The applicant in this matter has anchored his application for setting aside the judgment of 5th April 2012 on the basis of lack of jurisdiction. 47. The respondents however argue that the issue of jurisdiction was dealt with by this Honorable court vide a Ruling delivered on the 4th April 2019 in which the court held that the plaintiffs’ suit is not a land matter and squarely falls within the jurisdiction of this court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 7

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48. The respondents’ argument is unchallenged by the applicants and is indeed a valid objection taken on the strength of the Ruling by the Learned Honorable Justice A.Mbogholi Msagha on 4th April 2019. 49. The learned Honorable judge stated in the ruling that ‘’there is nowhere the plaint has raised anything relating to environment, use and occupation of, and title to land.” 50. The court proceeded to dismiss the Preliminary objection on jurisdiction dated the 18th June 2018 seeking to have the court decline jurisdiction and refer the matter to the Environment and Land Court for determination. 51. The decision by the judge was not appealed against thus the position that this court takes is that the issue of jurisdiction is now moot and cannot regurgitated before this court. 52. The applicants had the option of appealing against the said ruling since jurisdiction is a threshold issue and should be determined in limine. 53. This court cannot review the decision of a judge of concurrent jurisdiction as that would be tantamount to sitting on appeal against the decision of the judge. The Court of appeal in Stephen Mwaura Njuguna Vs Douglas Kamau Ngotho Civil Appeal No.90 of 2005 (consolidated with Civil Appeal No.247 of 2007) had this to say ‘’...the learned judge had no jurisdiction to determine a matter that was decided by a fellow judge of concurrent jurisdiction. He could not for instance set aside a judgment of Muga Apondi J, a judge who has the same jurisdiction as himself. Such setting aside could only be by an appellate but not by a judge of the High Court as the appellant sought.’’ 54. The applicants in this matter have extended similar invitation to this court which I respectively decline since my brother Justice A. Mbogholi Msagha (as he then was) had already made a final pronouncement on the issue of jurisdiction. The applicants have basically attempted to sneak the issues raised in the preliminary objection into this application. 55. The action of the applicant smacks of ill-will since the applicants know too well that jurisdiction is everything and this court cannot exercise a jurisdiction it does not have. 56. The application must therefore fail on that ground. 57. The court is thus left to determine whether besides the issue of jurisdiction, there is any other ground to warrant the setting aside of the judgement on admission. 58. The court has looked at the statement relied on by the court to reach the finding on admission. This court is of the view that the statement amounted to an admission by the 4th, 5th and 6th defendants and that it is clear and unambiguous. 59. The court in entering a judgment on admission must be satisfied that the admission is clear, deliberate and unequivocal. The admission may take the form of a pleading or a witness statement or testimony. In Mayana Capital Limited vs Shirley Niatalel Lenkoina $ Another 2020 KEHC7703(KLR)(2) the learned Honorable Justice G.Nzioka held;-‘ I find and hold that the admission is plain , obvious and clear. It is unequivocal. I rely on the holding in Choltram vs Nazari (1984) 1 KLR 327 and allow the application…’’. 60. An applicant who seeks to set aside a judgment on admission must be able to demonstrate that the same was equivocal, unclear and that the admission was not deliberate. The applicants in this matter have not demonstrated to the court that the admission was of like nature to justify the setting aside order being granted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 8

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61. Accordingly, this court finds that the numerous applications by the applicants are all calculated to delay the applicants date with fate. The statement was drawn and filed by them. There is no evidence that the drawing and filing of the document was involuntary or that it was not meant to be relied on at the trial. 62. This court agrees with the respondents’ submission that this application should be dismissed for it borders on abuse of process. 63. The upshot of the above is that the application dated 22nd June 2018 is hereby dismissed with costs. The matter shall proceed for formal proof. 64. The file shall be mentioned before the presiding judge of the Civil Division for allocation to another judge for hearing and final disposal. 65. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Gachishio for 2nd & 3rd Plaintiffs Ms Kubo h/b Munene for A.G/ Applicant Mumo h/b Harry Karanga for 1st Plaintiff Gachishio : All other Defendant there is JD https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11776/eng@2026-04-09 9

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