Hannah Wahu Njunguna v Joseph Cuthu Munyoike & Paul Kuria Kiguru

pleaded in the plaint that the plaintiff is the sole and absolute proprietor of the suit plot No. L.R. Nyandarua/Ol Bolosat/283 and has since August 2016 been in exclusive use and possession until 13 th September 2021 when the Defendants started interfering with his use and possession of said land by entering and constructing a permanent structure without the authority of the Plaintiff. 2. The plaintiff therefore sought the following orders; “ a) A declaration that the plaintiff is the legal owner of L.R Nyandarua/ Ol Bolossat/ 283 and is entitled to its exclusive possession and use as against the Defendant and as such entitled to its exclusive use as against the Defendant ELCA NO. E005 OF 2025 [JUDGMENT] Page 2 of 24

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b) A permanent injunction against the Defendants, their servants, agents, employees, staff, members of their family or any other person claiming through or under them from entering, remaining, constructing, putting up any structures, using, possessing and occupying or in any other manner from interfering with L.R Nyandarua/Ol Bolossat/ 283 c)Costs of this suit d) Any other or further relief that the court may deem fit and just to grant 3. The Defendants did not enter appearance or file a Statement of Defence and default judgment was entered against them on 28th July 2022. The matter was set down for formal proof hearing. ELCA NO. E005 OF 2025 [JUDGMENT] Page 3 of 24

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4. At the trial MARTIN KAMAU KARIUKI testified as PW1 that he is a land surveyor and he prepared the report dated 12/5/2022. He stated that he visited the suit land and compiled the report where he noted that a house was being constructed on parcel No. 283.The aforementioned report was produced as an exhibit. 5. The 1st respondent/plaintiff JOSEPH WANYOIKE testified as PW2. He adopted his witness statement as his evidence in chief and produced documents as per his list and bundle of documents. He stated that the house was being built on his land and was seeking prayers as stated in the plaint. The aforementioned witness statement was not found in the record of appeal. 6. In a judgment delivered on 24th August 2023, the trial court found that the plaintiff had proved his case on a balance of probability and found that the plaintiff is ELCA NO. E005 OF 2025 [JUDGMENT] Page 4 of 24

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the legal registered sole proprietor of L.R Nyandarua/Ol Bolossat/283 and granted the prayers as sought in the plaint. 7. The appellant was to file an application dated 22.1.2024 seeking the following orders before the trial court: a) Spent. b) THAT this Honorable Court be pleased to grant leave for the firm of GACHIE MWANZA & COMPANY ADVOCATES to come on record for the Defendant/Applicant after Judgment. c)THAT this Honorable Court be pleased to stay execution of the Judgment delivered on 24th August 2023 and subsequent Decree arising therefrom ELCA NO. E005 OF 2025 [JUDGMENT] Page 5 of 24

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pending the hearing and determination of this application interpartes. d) THAT this Honorable Court be pleased to review, set aside, discharge and or vary the Judgment issued on 24th August 2023 and allow the 1st Defendant leave to defend herself in this matter. e) THAT costs of this application. 8. The application was premised on grounds that the husband of the applicant, one Douglas Njunguna (Deceased) bought the suit land and is the bona fide owner of all property known as L.R Nyandarua/Ol Joro Orok Salient/21139 and that she was in current occupation of the said property. She further averred that she had not been served with court documents and did not therefore enter appearance ELCA NO. E005 OF 2025 [JUDGMENT] Page 6 of 24

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nor file a defence thus summary judgment was entered against her. That she was only made aware of the judgment when she was served with a decree and warrants of attachment dated the 24 th August 2023. She contended that these were sufficient reasons warranting the review or setting aside of the Judgment issued on 24th August 2023. 9. The 1st Respondent opposed the application vide his replying affidavit dated the 13th February 2024 . He contends that the pleadings, application, order and summons to enter appearance were served upon the Applicant on 24th September 2021 by a certified court process server and the applicant acknowledged the said service and it is therefore misleading of the applicant to state that she was never served. He avers that he has no interest in L.R Nyandarua/Ol ELCA NO. E005 OF 2025 [JUDGMENT] Page 7 of 24

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Joro Orok Salient 21139 and thus does not dispute the same being registered in the name of the Applicants husband, but avers that the applicant has no rights whatsoever over L.R. Nyandarua/Ol Bolossat/283 and her interference lacks any basis. 10. By a ruling delivered on 22nd January 2025, the trial court found that the application lacked merit and was dismissed with costs on the grounds that the appellant had not disputed service of summons and that there were no sufficient reasons given for the omission to convince the court to exercise its discretion in her favor. 11.Aggrieved by the aforementioned decision, the appellant lodged a Memorandum of Appeal dated 27th January 2025, where she raised the following grounds; “ ELCA NO. E005 OF 2025 [JUDGMENT] Page 8 of 24

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1. That the learned Magistrate erred in law and in fact by failing to set aside the irregular default judgment after the Appellant had proved that she was never served with summons to enter appearance and was completely unaware of the suit filed against her. 2. That the trial court erred in law and in fact by depriving the appellant an opportunity to defend herself and more so failing to appreciate Article 50 of the Constitution of Kenya, 2010 that promotes the right of every citizen to be heard. 3. That the learned Magistrate erred in law and in fact by stating that the appellant failed to enter appearance ELCA NO. E005 OF 2025 [JUDGMENT] Page 9 of 24

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out of ignorance of the law when in fact the Appellant stated that she had not been served with summons to enter appearance and was only made aware of an existing case when she was served the decree via WhatsApp, 4. That the trial court erred in law and fact by failing Appellants to consider submissions the before delivering the Ruling and/or study the draft defence which raised triable issues. 5. That the learned Magistrate erred in law and fact by failing to consider the great prejudice and injustice that would be occasioned to the Appellant ELCA NO. E005 OF 2025 [JUDGMENT] Page 10 of 24

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when she disregarded the Appellants substantive claim in dispute and the existence of sufficient reasons requiring her to render her decision. 6. That the learned Magistrate erred in law and fact by totally disregarding and/or evaluating the evidence before her and she undoubtedly exhibited actual bias as against the Appellant and against the rules of Natural Justice and indeed she was compromised as was evident. 7. That the learned Magistrate erred in law and fact failing to consider the Appellants evidence on record and Submissions and it is only right, proper, just and fair that the Appellant ELCA NO. E005 OF 2025 [JUDGMENT] Page 11 of 24

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is given an opportunity to be heard on merit.” 12.In that regard the Appellant is seeking orders that; the appeal be allowed, that the Ruling of the Honorable Court be set aside, and the suit in CMELC E071 of 2021 be reinstated for full hearing and costs of the Appeal and those of the lower court be borne by the Respondents 13.The Appeal was canvassed by way of written submissions. The appellants submissions are dated 4th April 2025 . She reiterated that her application was grounded on solid facts as she was never served with summons or pleadings, thus the default judgment was irregularly obtained. She avers that the alleged signature of the appellant confirming receipt is a forgery and the process server did not state how he knew who to serve or rather, he does ELCA NO. E005 OF 2025 [JUDGMENT] Page 12 of 24

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not disclose how he identified that the person served was the appellant. 14.She cited the case of Kiprotich v Maata (Civil Appeal 35 of 2022) (2024) KEHC 808 (KLR) (1 February 2024) (Judgment) envisaging details required in an Affidavit of Service and principles that govern the question of service of summons. She avers that given a chance through her advocates she will be seeking to cross examine the process server, a right she has been denied with the dismissal of her application. The appellant avers that the 1st respondent had the burden of proving service and failed do so because the affidavit produced was defective. 15.The appellant contends that the right to fair hearing is non-negotiable, encompassing the right to be notified of proceedings and to present a defense. She ELCA NO. E005 OF 2025 [JUDGMENT] Page 13 of 24

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cited the case of Frikogen Limited V Value Pak Food Limited ( 2011)eKLR arguing that by upholding the default judgment, the Honorable Magistrate subverted this duty occasioning prejudice. She further contends that she has a defense that raises triable issues that warranted a full hearing on merit and failure to consider it constitutes a miscarriage of justice. 16.The submissions of the 1st respondent are dated the 5th June 2026 where he contends that the appellant was personally served by a court process server and an affidavit of service sworn on 5th October 2021 disclosed all the relevant details. That the allegations now advanced that the acknowledgment signature was a forgery remains a mere assertion as no evidence was tendered to establish the alleged forgery. He cites the case of INM V AJMN ( 2022) ELCA NO. E005 OF 2025 [JUDGMENT] Page 14 of 24

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eKLR stating that in as much as the appellant in her further affidavit stated that she would seek to cross examine the process server once allowed to defend the suit she never applied for the same. 17.It is further argued that the 1 st Respondent is the registered proprietor of L.R Nyandarua/Ol Bolossat/283, while the Appellant stated that she has interest in L.R Nyandarua/ Ol Bolossat/21139 which two parcels are separate both on ground and title documents and the developments on his parcel of land clearly show that the Appellant has encroached on his land and this is why he was seeking eviction and the Appellant does not have a defence. 18. This being a first appeal, the court has a duties to “reconsider the evidence, evaluate it and draw its own ELCA NO. E005 OF 2025 [JUDGMENT] Page 15 of 24

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conclusion” as was stated in Selle Vs Associated Motor Boat Co. (1968) EA 123. 19. I have duly considered the record of the trial court, the grounds of appeal as well as the rival submissions of the parties. The main issue for determination is whether the judgment of 24.8.2023 should be set aside on account of none service of summons to enter appearance upon the appellant, which calls upon this court to analyse the Affidavit of Service on record to confirm whether the appellant was served or not. 20. The affidavits of services in question are dated 5 th October 2021 and 7th June 2022. I wish to highlight certain averments by the process server as contained in his affidavit sworn on 5/10/2021. He stated that he received copies of a court order issued on 23/9/2021, notice, certificate of urgency, Notice of Motion, Supporting affidavit, plaintiff statement, annextures, ELCA NO. E005 OF 2025 [JUDGMENT] Page 16 of 24

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summons to enter appearance, plaint, verifying affidavit, list of documents, list of witnesses with instructions to effect service upon the Defendant at her home near Prima Rosa Flowers; That on the same day around 4.30 hours at her place of residence within Oljoro-orok area, he served the defendant who accepted service and signed on the reverse of the original service and that he knew the 1st defendant because she was pointed out to him by the Plaintiff and hence became known to him as such at time of service. 21. Further by an Affidavit sworn on 7th June 2022, the licensed court process server stated that on 2/5/2022 he received copies of summons to enter appearance, amended plaint and verifying affidavit to effect service upon the defendants at Ol-joro-orok near Kanguo Secondary school within Ol-joro-orok and on the same day around 1200 hrs he served each of the defendants ELCA NO. E005 OF 2025 [JUDGMENT] Page 17 of 24

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and both accepted service but refused to sign on the summons. At paragraph 4 of the said affidavit, the process server states that; ‘the defendants were known to me at the time of service having served him with other documents in this matter”. 22. The appellant has not denied the specific and detailed contents of the aforementioned Affidavits. It is trite law that whoever alleges must prove. Section 109 of the Evidence Act provides that: “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 23. The 1st respondent provided return of service to show that the appellant was indeed served and the summons have an acknowledgment signature which on ELCA NO. E005 OF 2025 [JUDGMENT] Page 18 of 24

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examination does look similar to the one appended on the supporting affidavit to the application of the appellant. It is therefore clear that in this case the appellant had the burden of proving that the signature was a forgery as she has alleged in her further affidavit. 24. What more, the allegation made by the appellant that the signatures on the summons to enter appearance were forgeries was not raised before the trial court. In her supporting affidavit to the application, the appellant was mute in regard to the signatures. While in her further affidavit of 11.3.2024, she simply made a general statement at paragraph 5 that “ I never affixed my signature anywhere as alleged by the respondent…..”. Thus the issue of forgery was not made a subject of contest before the trial court and cannot therefore be entertained in this appeal, See- ELCA NO. E005 OF 2025 [JUDGMENT] Page 19 of 24

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Kiplagat Korir v. Dennis Kipngeno Mutai (2006) eKLR. 25. The jurisdiction to set aside an exparte judgment is anchored in Order 10 Rule 11 of the Civil Procedure Rules which provides that: “Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 26. This provision clothes the court with the discretionary power to intervene in the interest of justice where a party has been condemned unheard. The courts first duty is to determine whether the impugned judgment is regular or irregular. Where service of summons is shown to have been duly effected, but a party fails to enter appearance or file a Defence, the Judgment ELCA NO. E005 OF 2025 [JUDGMENT] Page 20 of 24

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entered is regular and the court may exercise its discretion to set aside on just terms. However, where service was not effected, the judgment is irregular and must be set aside ex debito justitiae [ James Kanyita Nderitu V Maries Philotas Ghika & another (2016) eKLR]. 27. In the case at hand, the court makes a finding that the judgment delivered on 24.8.2023 was regular as service of summons had been effected. 28. In Crystal Investments Ltd V Elme & 3 others [2019] eKLR court cited the case of Kenya Power & Lighting Co. Ltd V Abdulhakim Abdulla Mohammed & Another [2017] eKLR, the Court of Appeal held that: “The fact that under Order 10 Rule 11 the court has power to set the terms and conditions for vacating a default judgment ELCA NO. E005 OF 2025 [JUDGMENT] Page 21 of 24

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does not mean that such conditions must be set arbitrarily without regard to the peculiar circumstances of each case. The overriding consideration in an application to set aside a default judgment where the intended defence raises triable issues and absent evidence of intention or deliberate action by the appellant to overreach, obstruct or delay the cause of justice, is to do justice to both parties. (See Mbogo & another v Shah, (supra). That is what both order 10 rule 11 and the Judgment in Patel v East Africa Cargo Handling Services (supra) emphasize.” 29. That brings us to the proposed defence of the appellant. The appellant has vehemently denied every claim in the plaint and there is no counter claim. I find ELCA NO. E005 OF 2025 [JUDGMENT] Page 22 of 24

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no controversy in ownership as the appellant has stated that her interest is in parcel L.R Nyandarua/Ol Joro Orok Salient/21139 while the 1st Respondent is the bona fide Bolossat/283. owner The of validity L.R of title Nyandarua/Ol of the 1 st respondent has not been brought into question in the defence. In fact, both parties have reiterated ownership and interests of different titles. See Mohamed Ahmed Dahia &3 Ors V Abbey Hassan Maalim[2020] eKLR. The proposed defence of the appellant is nothing but a general denial. Her claim to the property of the 1st respondent is unknown. Thus the court cannot exercise its discretion in favour of the appellant. 30. I come to the conclusion that there are no plausible reasons advanced by the appellant to warrant the setting aside of the ruling delivered on 22.1.2025. In the circumstances, ELCA NO. E005 OF 2025 this appeal [JUDGMENT] is found to be Page 23 of 24

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unmerited, the same is hereby dismissed with costs to the 1st respondent. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 23RD DAY OF SEPTEMBER 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Yaru/Consolata – C/A Mburu h/b for Jackie Mwanya for appellant M/s Rotich h/b for Mr. Komu for respondent ELCA NO. E005 OF 2025 [JUDGMENT] Page 24 of 24

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