Monica Muthoni (Suing as Legal Representatives of the Estate of Michael Anjere) v Daniel Solitei Namadi & County Government of Kajiado

stay of execution of the Judgment delivered on 7th November 2024; a temporary injunction restraining the Appellant/Respondent from using or interfering with Plot No. 1275/Business – Noonkopir Trading Centre (now Plot No. A447 Business – Noonkopir Trading Centre); setting aside and/or varying the Judgment delivered on 7 th November 2024 together with all consequential decrees and orders; and leave to file a defence and defend the suit on its merits. 2. The application is premised on the grounds that the Applicant was unaware of both this Appeal and the resultant Judgment until the existence of the proceedings came to his attention through Criminal Case No. CR E797 of 2022. He further contends that he was unaware that Kajiado CMELC No. E087 of 2022 had been dismissed and maintains that he was never served with summons, pleadings or hearing notices either before the subordinate court or during the appeal. Consequently, he argues that the appeal proceeded without affording him an opportunity to be heard, thereby violating his right to a fair hearing and exposing him to the loss of his proprietary interest in Plot No. 1275/Business – Noonkopir Trading RULING ELCA NO. E024 OF 2023 Page 2 of 8

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Centre (now Plot No. A447 Business – Noonkopir Trading Centre). 3. The Appellant/ Respondent opposes the application arguing that the Applicant was aware of the Appeal having been duly served but having declined to participate. She also states that there has been inordinate delay in filing this application since the impugned Judgement was delivered in 2024. In any event, she states that she has since disposed of the property to a third party. 4. At the time of writing this Ruling, only the Appellant/Respondent had filed submissions. 5. Counsel for the Appellant submits that the Applicant has not satisfied conditions for grant of stay of execution as espoused by Order 42 Rule 6(2) Civil Procedure Rules since he had not shown that he would suffer loss and neither has he furnished security. Counsel also submits that the application was brought one year after the Judgement was delivered and the reason for this delay is unsatisfactory since he was properly served but failed to participate in the Appeal. 6. On the setting aside of the Judgement delivered on 7 th November 2024 and the Applicant be allowed to file a RULING ELCA NO. E024 OF 2023 Page 3 of 8

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defence, counsel submits that the Applicant failed to participate in the proceedings from the Lower Court to this Appeal. Counsel submits that the Applicant cannot accuse his Advocate for inaction since the suit belongs to him and he had the duty to pursue the matter. It is also argued that no sufficient reasons have been given to warrant the setting aside/ varying of the judgement. 7. Having considered the application, I find that the issues falling for determination are: i. Whether the Applicant has satisfied the requirements for grant of stay of execution of the Judgement delivered on 7th November 2024 and whether an interlocutory injunction should be issued. ii. Whether the Applicant has satisfied grounds to warrant setting aside or varying of the Judgment delivered on 7th November 2024 and reopening the proceedings. 8. Order 42 Rule 6(2) of the Civil Procedure Rules provides that no order for stay of execution shall issue unless the court is satisfied that substantial loss may result to the applicant unless the order is made, the RULING ELCA NO. E024 OF 2023 Page 4 of 8

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application has been made without unreasonable delay and the applicant has furnished such security as the court may order for the due performance of the decree. 9. In Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), Madan JA held: “…It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution…” Having perused the Court file, I find that the Applicant has not established what loss he would suffer if the Judgement is executed. As such, the relief for stay of execution cannot stand. 10. The next issue for determination is whether the judgement delivered on 7th December 2024 should be stayed/set aside. 11. “The jurisdiction to set aside a judgment is discretionary and must be exercised judicially to prevent injustice or hardship arising from accident, inadvertence or excusable mistake, but not to assist a litigant who deliberately seeks to obstruct or delay the course of justice…”. This was affirmed RULING ELCA NO. E024 OF 2023 Page 5 of 8

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authoritatively stated Mbogo and another v Shah [1968] 1 EA 93. Further, in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court held: “… to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether defence raises triable issues; the the intended respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. 12. The Applicant seeks the setting aside of the judgement on the assertion that he was never served and that the Judgment was obtained in his absence without an opportunity to be heard. It is argued that the Applicant did not defend the suit at the lower court in spite of service. I RULING ELCA NO. E024 OF 2023 Page 6 of 8

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would not wish to venture at this stage into the proceedings that took place at the Magistrates court. However, I have gone through the Appeal file and I note that there is no indication at any time that the Applicant had been served. Equally, I have gone through the Appellants Replying Affidavit and the annexures and I have been unable to decipher any affidavit of service. 13. The Respondent remained a party whose interests were directly affected by the appeal. More importantly, the appeal changed the position created by the lower court. This court’s Judgment therefore produced an adverse result against a Respondent who says he never received notice of the appellate proceedings. 14. Under Order 42 rule 12 of the Civil Procedure Rules, once an appeal has passed the section 79B stage, the appellant is required to serve the memorandum of appeal upon every respondent. Order 42 rule 13 further contemplates notice to the parties before directions are given. I am not satisfied that these legal requirements were complied with. RULING ELCA NO. E024 OF 2023 Page 7 of 8

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15. The interests of justice therefore favour the setting aside of the Judgement to allow the Respondent to participate in the appeal. 16. The application is allowed as follows; a. The Judgement delivered on 7th November 2024 is hereby set aside. b. The Appellant is to serve the Respondent with the record of appeal within 30 days. c. That costs to abide the outcome of the Appeal. Dated, Signed and Delivered virtually at Kajiado this 24th day of September 2026. JUDY OMANGE JUDGE IN THE PRESENCE OF: Mr. Itaya for the Appellant/ Respondent Mr. Gichunge for Respondent/Applicant. Peter – Court Assistant. RULING ELCA NO. E024 OF 2023 Page 8 of 8

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