Independent Electoral and Boundaries Commission v Chesingei alias Joseph Kimutai Suter & 3 others

3. 4. 5. It is not in dispute that the petition was heard fully, and judgment was entered against the appellant, 3rd and 4th respondents on 25th September 2023. The learned Judge, (L.Waithaka, J) made the following orders: “ 39. The upshot of the foregoing is that the Petition has merit and is allowed in terms of prayer (a) and prayer (c) to the extent that the 4th respondent in conjunction with the 3rd respondent is directed to regularize the acquisition of the suit property in total compliance with the provisions of the Land Act, 2012 and the Land Value (Amendment) Act, 2019 within a period of nine (9) months from the time of delivery of this judgment, failing which the 3rd respondent shall pay the petitioner Kshs.13,000,000/- for the one acre of the suit property it occupies or vacate the suit property. 40. The prayer for removal of the restriction shall abide the outcome of the order for regularization of the acquisition, so that in the event that regularization is not done within the period of nine (9) months from the time of delivery of this judgment and the 3rd respondent does not either compensate the petitioner for the one acre or there about it occupies, an order of mandamus shall forthwith issue compelling the 1st respondent to remove the restriction registered against the title of the suit property.’’ Subsequently, the appellant led a Notice of Motion dated 24th May 2024 seeking to set aside the judgment. In a ruling dated 25th September 2024, the learned Judge (L. N. Waithaka, J) dismissed the application, triggering this appeal. In dismissing the application, the learned Judge held as follows: “ 10. I have carefully considered the application by the 3rd respondent/applicant, the response thereto, and the submissions by the respective parties. I nd the sole issue for the court's determination to be whether the 3rd respondent/applicant has made up a case for being granted the orders sought, particularly the order for setting aside of the judgment of this court delivered on 24th May 2024. 11. With regard to that issue, whilst the 3rd respondent/applicant has raised a pertinent issue, which if proved would entitle him to grant of the orders sought, I note that in his supporting adavit, the 3rd respondent/applicant acknowledges that he was served with the decree issued by this court pursuant to the judgment sought to be set aside. Regrettably, the applicant has not indicated when he received the decree yet the time he got to know about the judgment/decree of the court is an important factor to consider in determining whether or not the application for setting aside the judgment was made without unreasonable delay. 11. As pointed out herein above, the instant application was led eight (8) months after the judgment sought to be set aside was delivered. No explanation whatsoever has been oered by the applicant.” The appellant, in its memorandum of appeal, raises 5 grounds which we take the liberty to summarize as follows: that the learned Judge erred in nding that judgement was lawfully entered whereas there was no service of summons; the process server was not cross-examined; that the learned Judge failed to consider the fact that the appellant is already in occupation and therefore ought to have considered how the appellant moved in and constructed its oces and that its submissions were not considered. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1846/eng@2026-09-25 2

page 2 of 7

In summary, the appellant contended that the judgment entered was irregular and ought to have been set aside ex debito justitiae. 6. When the appeal came up for hearing on 26th May 2026, Mr. Gacuca, learned counsel, appeared for the appellant, while Mr. Bundotich Korir, learned counsel, appeared for the 1st respondent. There was no appearance for the 2nd, 3rd and 4th respondents, though duly served with the hearing notice. The appellant led submissions and a list of authorities dated 3rd February 2025, while the 1st respondent conrmed having led submissions and a list of authorities dated 15th May 2026. Both parties relied on their submissions and lists of authorities, which they briey highlighted. 7. This is a rst appeal. As a rst appellate court, an appeal is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put, they are that this Court must reconsider the evidence, evaluate it, and draw its own conclusions, though it should always bear in mind that it did not have the advantage of seeing or hearing the witnesses and thus should make due allowances in this respect. (See Gitobu Imanyara & 2 others Vs. Attorney General [2016] eKLR). In this appeal, we note that the main issue in contention is the learned Judge's exercise of discretion in refusing to set aside the judgment. 8. We have carefully considered the record of appeal, the documents and the submissions by the parties. The principles guiding the Court where the issue in contention is the exercise of discretion are well settled, and the celebrated case of Mbogo Vs. Shah [1968] EA 93 has withstood the test of time. The principles are: “ A Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satised that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 9. The appellant argued that it was never served with the petition and the notice to enter appearance, which is a violation of its constitutional right to a fair hearing. It stated that after discovering 9 months later that judgment had been entered against it, it applied to set it aside, but the Judge dismissed the application. It argued that the Judge acted on the wrong principles of the law and thus exercised her discretion injudiciously. It cited the case of Apungu Arthur Kibira Vs. Independent Electoral and Boundaries Commission & 3 others [2029] eKLR. 10. The appellant submitted that the learned Judge erred by nding the judgment was regular despite disputed service. They argued that the judgment was irregular and should have been set aside ex debito justitiae (as a matter of right), as established in James Kanyiita Nderitu Vs. Marios Philotas Ghikas & Another [2016] eKLR and Yooshin Engineering Corporation Vs. Aia Architects Limited [2023] KECA 872 (KLR). The argument was that a party condemned without being heard is entitled to have the judgment set aside as a matter of right, regardless of the existence of a defence. 11. The appellant further argued that the trial Judge erred by failing to summon the process server for cross-examination as laid out in Shadrack Arap Baiywo Vs. Bodi Bach [1987] eKLR, which states that where service is contested, the process server should be cross-examined. 12. On the question of delay, the appellant argued that an irregular judgment must be set aside as a matter of right and that it does not become regular just because a party delayed in setting it aside. It further argued that so long as a person was not served, it is irrelevant whether that person had a valid defence or not and that such a person must be heard even if the outcome remains the same. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1846/eng@2026-09-25 3

page 3 of 7

13. The appellant argued that service was not done and disputed the averments in the adavit of service, as the time of service, the name of the person served and how the person was identied were not disclosed. 14. On its part, the 1st respondent argues that service was properly done, that the judgment was regular, and that the learned Judge's exercise of discretion in dismissing the application was sound and should not be interfered with by this Court. He argued that upon service, the 2nd, 3rd and 4th respondents fully participated in the suit and later the costs were assessed. 15. The 1st respondent submitted that the learned Judge's nding on service was correct. They pointed to the supplementary record of appeal, which included an adavit of service and a copy of the petition and notice to appear stamped by the appellant's County Election Manager on 18th August 2022. To the 1st respondent, this directly contradicts the appellant's claim of non-service. 16. The 1st respondent argued that the learned Judge's discretion was exercised judiciously and should not be disturbed. He relied on the cases of Coee Board of Kenya Vs. Thika Coee Mills Limited & 2 Others [2014] eKLR and Mwangi Vs. Wambugu [1984] KLR 453, which hold that an appellate court will not interfere with a trial court's exercise of discretion unless the trial court is shown to have acted on a wrong principle or misdirected itself. 17. Regarding the need for a defence, the 1st respondent cited the case of Tree Shade Motors Ltd Vs. D.T. Dobie and Company Ltd & another [1998] eKLR, which held that to set aside a regular judgment, an applicant must demonstrate a defence on the merits. The appellant failed to annex a draft defence or response indicating it had no arguable case. 18. The 1st respondent further supported the trial Judge's nding on delay. Citing Kotecha & Sons Ltd Vs. Amalo & Company Ltd (Kisumu CA No. 81 of 2019) and Maurine Louise Osembe Vs. Kipkai Enterprises Ltd (Nairobi CA No. 499 of 2019), he argued that the appellant's eight-month delay in ling the application to set aside without any reasonable explanation was sucient ground to deny the application. 19. A consideration of the submissions of both parties clearly shows that the primary issues for determination, as identied by this Court, are: whether the learned Judge erred in nding that the appellant had not met the threshold for setting aside the judgment; and whether the learned Judge exercised her discretion judiciously in dismissing the application. 20. The foundation of the appellant's case is that it was not served. However, this Court has carefully examined the record, including the supplementary record of appeal. It contains an adavit of service sworn on 24th August 2022, which states that on 18th August 2022, the petition and notice to appear were served on the oces of the Independent Electoral and Boundaries Commission. Crucially, the notice to appear and the petition themselves bear a receiving stamp from the "County Elections Elgeyo Marakwet" dated “18 AUG 2022”. (See pages 3–10 of the Supplementary Record of Appeal). It is signicant to note that the appellant either by mistake or deliberately omitted to include this adavit of service in the record. When the 1st respondent led the supplementary record of appeal to include the adavit of service, the appellant did not dispute that it was indeed part of the record. 21. We have carefully examined the adavit of service. The notice to appear at page 4 of the supplementary record of appeal bears three stamps: the Environment and Land Court stamp dated 28 July 2022; the Attorney General, Eldoret Litigation stamp dated 17 August 2022; and the County Election Manager stamp dated 18 August 2022. The Attorney General entered appearance, while the appellant alleges https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1846/eng@2026-09-25 4

page 4 of 7

that its stamp is not genuine. In his adavit sworn on 24th May 2024, the County Elections Manager acknowledged that the document bore his oce stamp, but denied service on the ground that the person served and the time of service were not disclosed. All three stamps appear on the same page. In its submissions, the appellant argued that the judgment should have been set aside because the process server was not cross-examined. However, we have carefully reviewed the appellant’s submissions dated 13th August 2024 in support of the Notice of Motion to set aside the judgment, and they raise no issue concerning cross-examination of the process server. Had the appellant applied to cross-examine the process server, the notice or oral application should have appeared in the record of appeal to support the allegation that it was denied that opportunity. In the absence of such notice or record of an oral application, the appellant cannot now fault the learned Judge on that basis. Further, as already stated, the notice to appear bears two service stamps: one for the appellant and the other for the Attorney General. The appellant would want the Court to believe that its stamp was false, while the Attorney General’s stamp, which led to the entry of appearance, was genuine. 22. This documentary evidence provides a strong, rebuttable presumption of proper service as articulated in Shadrack Arap Baiywo Vs. Bodi Bach (supra). A mere denial of service by an applicant does not automatically displace the process server's adavit, which has the ocial stamp of the appellant's own oce. The trial Judge was entitled to accept this as evidence of proper service, especially given the appellant's failure to provide a plausible explanation for its own ocial stamp being on the documents. A mere denial is not enough. Did the appellant report to the police that a forgery had occurred? No such evidence was provided. 23. The other argument by the appellant that the trial Judge should have suo motu summoned the process server is misguided. Order 5 Rule 16 of the Civil Procedure Rules provides that the court may examine the serving ocer if an allegation of improper service is made. This is a discretionary power, not a mandatory obligation. The absence of a request for cross- examination from the appellant itself weakens this ground of appeal, as no notice to cross-examine was included in the record of appeal. 24. It is not in dispute that the learned Judge did not signicantly delve into the genuineness of the adavit of service. But the Judge clearly points out that she doubts the genuineness of the appellant’s claim as the delay was inordinate and the appellant did not disclose when it became aware of the decree. 25. A distinction between a "regular" and "irregular" judgment, as laid out in the James Kanyiita Nderitu case (supra), is therefore crucial here. A judgment is considered "irregular" when there is no service at all. In this case, there is evidence of service. The trial Judge's nding that the judgment was regular is therefore sound. The court must not set aside a regular judgment merely on the unsubstantiated denial of the defaulting party, particularly when the record is clear on its service and the defaulting party has not shown diligence. 26. The appellant argues that it did not need to annex a draft defence. As already stated, its main argument that the judgment should have been set aside ex debito justitiae has collapsed as there was evidence of service. The appellant failed to annex a draft reply to the petition or any document outlining its proposed defence to the 1st respondent's claim. Its submissions before this Court were solely focused on the issue of service and procedure, without demonstrating any substantive defence to the land claim. As held in Tree Shade Motors Ltd Vs. D.T. Dobie and Company Ltd & Another (supra) the practice https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1846/eng@2026-09-25 5

page 5 of 7

is to tender a draft defence with the application, which the appellant neglected to do. In that case, the Court pronounced itself as follows: …“a “defense on the merits” does not mean a defense that is guaranteed to win. Instead, it means establishing a triable issue – raising a prima facie (at rst sight) defense worthy of going before a court for full trial and adjudication.” 27. In this appeal, it was necessary for the appellant to show the draft defence, as it is not denied that it is in occupation of the property and that the 1st respondent has not been compensated. 28. The trial Judge therefore correctly applied the relevant legal principles. She declined to exercise her discretion to set aside the judgment because of the inordinate delay and the appellant's failure to annex its proposed defence. That failure provided a valid basis for declining to exercise discretion in the appellant's favour, and we cannot fault the learned Judge for doing so. 29. The trial Judge also correctly considered the inordinate delay in the appellant's actions. The judgment was delivered on 25th September 2023. The appellant led its application to set aside on 24th May 2024, a period of eight months. The appellant acknowledged being served with the decree (which would inform it of the judgment) but failed to state when it became aware of the decree. 30. The law, as restated in Kotecha & Sons Ltd Vs. Amalo & Company Ltd (supra) holds that unexplained delay is a material factor to be considered against an applicant seeking to set aside a judgment. The trial Judge was correct to nd this unexplained delay was inordinate and a factor that weighed against the appellant. 31. We think we have said enough to show that this was not a case of an irregular judgment obtained without service, but rather a regular judgment obtained after service, but against a party that defaulted. The learned Judge acted on sound legal principles. She correctly considered the unexplained and inordinate delay in ling the application. She correctly applied the principle that an application for setting aside a regular judgment must demonstrate a defence on the merits, a burden the appellant failed to discharge. 32. In view of the foregoing and noting that setting aside a judgment is a discretionary power, we do not nd any basis to hold that the Judge exercised that power injudiciously as argued by the appellant. 33. Before we conclude, we observe that it is puzzling that the District Land Registrar, the Attorney General, and the National Land Commission, the 2nd, 3rd, and 4th respondents, respectively, participated in the trial, led responses and documents, and produced material directly concerning the acquisition of the land in question, yet made no mention of the appellant's alleged absence. Since the Attorney General and the National Land Commission entered appearance and led replying adavits and submissions, the question also arises whether they served the appellant, who was named as a party in the petition. 34. The other puzzling issue is that the 2nd, 3rd and 4th respondents failed to participate in the hearing of this appeal and yet had been properly served, yet there is judgment entered against them. We say no more. 35. In conclusion, we nd this appeal is without merit. We nd no error of law or principle in the ruling that would warrant this Court's interference with the exercise of the trial Judge’s judicial discretion. The appeal fails and is hereby dismissed in its entirety. 36. On costs, the rule of thumb is that costs follow the event. There are no circumstances to make us depart from the rule. Therefore, the costs of the appeal and the costs of the application before the Environment and Land Court are awarded to the 1st respondent. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1846/eng@2026-09-25 6

page 6 of 7

DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. ...................................... JUDGE OF APPEAL W. KORIR ...................................... JUDGE OF APPEAL L. M. NDOLO ..................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1846/eng@2026-09-25 7

page 7 of 7