Joyce Muthoni Waciuma v Dr Frank K. Mwongera & Others; Kingi Kazungu Ngumbao (Suing as Legal Representative of the Estate of Kahindi Ngumbao Kiraga, Deceased) (Proposed Defendant/Applicant)

published in The Kenya Gazette Notice of 17th July 2017 had established that the property was meant for public use for a primary school; that the Green Card for the suit property had been missing for quite sometime until recently when a Green Card was applied which established that the property was irregularly registered in favour of the first defendant; that the proposed defendant was not aware of the court proceedings and unless the judgment is set aside, the Mayungu Community will not obtain legal documents which would allow them to develop the property as intended. It is further stated that the transmission of the property from the Government of Kenya directly to the first defendant was without compliance with due process, illegal and irregular. The applicant states that he has established an identifiable stake in the suit property as a beneficial owner, and that his interest should be protected. The application is supported by the affidavit of the applicant attached thereto which amplifies the foregoing grounds. 2. The first defendant filed a replying affidavit dated 5th of February 2026 in which it deponed as follows: that the judgment in the case which was obtained after a full trial had established and conferred upon him title over the suit property; the application is an afterthought meant to frustrate him from enjoying the fruits of the litigation and he has been in occupation of the suit property since 1999; that the applicant is a busy body who has not demonstrated any interest with respect to the suit property; that the applicant has not explained to the court why he took no steps to ventilate his claim since 2000. MLDELC146/16-RLG/DF16.12.25 /FH-27.01.26/LH-27.01.26/DR-23.09.26F. Page 2 of 6

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3. Neither the second and third defendants nor the plaintiff filed any response to the application. The application was disposed of by way of written submissions which the applicant and the first defendant filed. Analysis and determination. 4. I have considered the application, the response and the submissions on the application. The applicant’s Counsel’s submissions focused on the issue whether the he has an identifiable stake in the suit property. Counsel stated that the suit property belonged to the applicant’s father until his demise. The applicant relies on various documents including a handwritten letter to the Assistant Chief of Baraka Chembe sub-location Watamu Location regarding the suit land, apparently written by some 35 Mayungu Community members who are listed therein. The Kenya Gazette Notice of 17th July 2017 is also attached. There is a letter dated 25th September 2002 which seems incomplete. There is another letter of 12th August 2010 written by people who call themselves the “Chembe Kibabamshe Local Land committee” requesting for cancellation of the existing title deed and registration of the suit land in favour of the deceased. A report of the Special Task Force on Kilifi Jimba and Chembe Kibabamshe dated June 2010 was also attached. It is that report which the applicant relies on as establishing that his father was an occupant of the suit land. The copy of the Kenya Gazette Notice dated 7th July 2017 was exhibited in an attempt to prove that the same property was meant for building a school. It is stated MLDELC146/16-RLG/DF16.12.25 /FH-27.01.26/LH-27.01.26/DR-23.09.26F. Page 3 of 6

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that the first defendant cannot explain how he came across the title. Among the documents exhibited was also a letter dated 2nd September 2025 written by the local Assistant Chief to the Director of Land Adjudication and Urban Settlement stating that the property was meant for building a school, having been donated by the deceased. 5. It is clear from the case of Yooshin Engineering Corporation Versus Aia Architects Limited 2023 KECA 872 KLR that even where a judgment is regular, the court has wide discretion to set the same aside though if it decides to set it aside it may do so on conditions that are just. The same principle was earlier on espoused in Patel Versus East African Cargo Handling Company. In both the cases of Yooshin (supra) and Patel the court observed that the main concern is for the court to do justice to the parties and that the court will not fetter its discretion granted to it by the rules; that the court has to ask itself under what conditions it can set aside the judgment and such conditions if appropriate, must be just to both the plaintiff and the defendant. What comes through in the case law is that where a judgment is irregular it must be set aside ex debito justitiae, but where a judgment is regular the court may exercise its discretion to set it aside. 6. In the present case the court heard the parties’ evidence and delivered a regular judgment. Although the applicant had an opportunity to pursue his claim through the court from as long ago as the year 2000, which date appears on the correspondences that he has attached to his application, he MLDELC146/16-RLG/DF16.12.25 /FH-27.01.26/LH-27.01.26/DR-23.09.26F. Page 4 of 6

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never did so. The present suit was filed in the year 2016 and the petition in 2019 and both were consolidated and tried together, resulting in one judgment. There is no ground given by the applicant as to why after the National Land Commission issued its Gazette Notice on 17th July 2017, he never made an application to be joined in the present litigation before hearing was conducted and judgment delivered. He never commenced his own litigation to show that he was pursuing in the interest in the land prior to the delivery of the judgment in the present matter. Also, the applicant appears to engage in doublespeak, where in some instances he alludes to “his” interest in the land and in others to the “Mayungu Community’s” interest in the land. To this court, if at all he intended to demonstrate his own personal interest in the land he has failed in that regard, for there is nothing among his annextures he has exhibited that demonstrates such interest. As such, he has not demonstrated what prejudice he would suffer if the application before the court was not granted as prayed. In relation to the community’s alleged interest in the land, he has not also demonstrated that he has come to this court to represent the interests of the Mayungu Community, or that he has any such authority to represent it. 7. Regarding time lapse, it must be observed that judgment in this matter was delivered way back on the 7th March 2024 and that the application was filed on 18th December 2025, hence an unexplained hiatus of about 7 months exists. This court finds that to be inordinate delay in the presentation of an application for setting aside on the part of an applicant MLDELC146/16-RLG/DF16.12.25 /FH-27.01.26/LH-27.01.26/DR-23.09.26F. Page 5 of 6

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like the plaintiff who had material knowledge of the matters surrounding the land from as long ago as the year 2000, or even much later, the year 2017 when the National Land Commission issued its Gazette Notice. 8. Consequently, I find that application dated 16th December 2025 lacks merit and the same is hereby dismissed with costs payable only to the first respondent. Dated, signed and delivered at Malindi on this 23 rd September 2026. HON. JUSTICE MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELC146/16-RLG/DF16.12.25 /FH-27.01.26/LH-27.01.26/DR-23.09.26F. Page 6 of 6

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