REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. E011 OF 2020
REUBEN KIOKO KAKYEMA........…………………………….PLAINTIFF
-VERSUS
KIOKO WAMBUA ITINGA (Sued a the legal representative of the Estate of Nathan of Nathan Kiio Itinga – Deceased)...... …………1ST DEFENDANT
JAMES KYALO WAMBUA (Sued as the legal representative of the Estate of Nathan Kiio Itinga – Deceased).........................................2ND DEFENDANT
THE NATIONAL LAND COMMISSION.......................... 3RD DEFENDANT
RULING
1. This is a ruling in respect of motion dated 21st November, 2025 in which the Defendants/Applicants seek the following orders:
1. That the honourable court be pleased to order to set aside the decision of allowing the matter to proceed by way of formal proof and allow the Defendants/Applicants to file a defence out of time.
2. That the honourable court be pleased to enlarge time for Defendants/Applicants to file their defence and the formal proof slated for 26th November, 2025 be stayed.
3. That the honourable court does order and stay the execution of the NLC Award Certificates in respect Mavindini/Mavindini/1238 and Mavindini/Mavindini/1239 pending hearing and determination of this application and matter.
4. That the honourable court be pleased to vary the orders of Hon. Justice T. Murigi issued on 3rd February, 2025 to allow the Defendants/Applicants to file a defence out of time unconditionally.
5. That the honourable court in the intereset of fair hearing does allow the Defendant/Applicants to pay the throw away costs and admit their defence out of time.
2. The Applicants contend that they have never instructed the firm of Maosa & Co. Advocates to act for them and that when the matte came up for mention on 22nd September, 2025 an advocate who had no instructions to act for the Applicants appeared virtually yet the 1st Applicant had filed a notice of intention to act in person.
3. The Applicants are seeking extension of time to file a defence out of time. The Applicants contend that they have never been served with summons to enter appearance. They state that The Plaintiff /Respondent has lost a number of applications in the succession court and appeals to the High Court on succession matters. The Applicants state that the Respondent will not suffer any prejudice if the orders sought are granted.
4. The Applicants’ application is opposed by Respondent through a replying affidavit sworn on 15th January, 2026. The Respondent contends that the Applicants’ application is an abuse of the process of court as summons were duly served and an advocate entered appearance on the Applicants’ behalf. There have been a number of applications filed herein through advocates and therefore the Applicants cannot claim that they were not aware of the suit.
5. The Respondent states that the advocate who the Applicants are denouncing is the one who has been appearing for the Applicants in both the succession matters and before this court. The said advocates Ms. Maosa & Co. Advocates have even filed a notice of appeal against a ruling from this court.
6. The Respondent stats that the Applicants have been filing documents on their own when they have advocates on record. The Respondent states that he purchased the suit properties from their late father and was put in possession and when the National Land Commission came to value the suit properties, he was the one in possession and the court has already sanctioned payment of compensation in respect of the developments he had carried out and that if there is any award in favour of the Applicants, then that award is invalid as it was made during the pendency of this suit.
7. The parties were directed to file submissions. The Applicants filed their submissions dated 27th February, 2026. The Respondent filed submissions dated 27th February, d2026 as well. I have carefully considered the Applicant’s application, the opposition to the same by the Respondent as well as the submissions by the parties. The following are the issues for determination.
a. Whether the Applicants deserve extension of time to file defence.
b. Whether the court should vary the previous orders of Justice Murigi so as to allow the Applicant to file their defence unconditionally.
c. Whether the court should grant stay of execution of the award by the National Land Commission.
8. I will deal with all the three issues together. Before I do so, a brief background is necessary. The Respondent had purchased two parcels of land from the father of the Applicants in 2002. Before the Applicants’ father could transfer the two properties, he passed away. The properties were Mavindini/Mavindini/1238 and 1239 (suit properties).
9. Later the government undertook to build Thwake dam. The suit properties were compulsorily acquired upon valuation. The Applicants started the process of succession in respect of the estate of their late father (deceased). Among the properties listed as belonging to the estate of the deceased are the suit properties.
10. The Respondent moved to court and filed this suit. He filed an application seeking to compel the National Land Commission to pay him Kshs.3,270,435/= being an award for improvements on the suit properties. This application was allowed on 2nd September, 2021. The Applicants filed notice of appeal against the ruling but the fate of the appeal is not known.
11. The Applicants filed a defence dated 26th October, 2021 which was well out of time. The Respondent filed reply to this defence on 16th November, 2021 raising issues of the defence having been filed irregularly and that the same had not been stamped.
12. The Applicants filed an application for stay of execution of the ruling of 2nd September, 2021 pending appeal. The Respondent also filed an application seeking an order that the case proceeds as undefended. The ruling in respect of the two applications was delivered on 29th June, 2022. The application for stay by the Applicants was granted on condition that they file an appeal within 60 days against the ruling of 2nd September, 2021 and deposit Kshs.100,000/= as security in court within 30 days. The court further stated that failure to comply with the two conditions will automatically lead to lapse of the stay orders.
13. As regards the Respondents’ application, the same was not allowed. Instead, the Applicants were granted time to file defence within 7 days and pay throw away costs of Kshs.20,000/= within 14 days and meet the costs of the application. The court further directed that noncompliance with the three conditions will render the orders vacated and the suit will proceed as undefended.
14. The Applicants made an application dated 22nd November, 2022 seeking to set aside the conditions granted via ruling of 29th June, 2022. The Applicants application was dismissed with costs on 31st January, 2024.
15. The Applicants made an application dated 7th March, 2024 in which they wanted all the directions and orders given in the suit revoked and the matter transferred to the lower court to start afresh. This application was dismissed with costs on 3rd July, 2025. The Applicants filed an appeal against the ruling of 3rd July, 2025 but its fate is not known.
16. It is clear from prayer 4 that the Applicants are seeking to circumvent the conditions which were given when they were allowed to file defence out of time. The Applicants have tried twice before to set aside the orders given by Justice Murigi. On those two occasions, they have failed to overturn the conditions. There is an appeal which the Applicant filed out of the ruling of 29th June, 2022. The stay as well as the leave to file defence out of time have lapsed. The filing of this application on the pretext that the advocate who filed the same had no instructions to do so is to say the least an abuse of the process of court.
17. The Applicants were granted conditions which they did not meet. As a result the indulgence given by the court lapsed. It appears the Applicants are seeking to get what they were given but did not meet the conditions. This application is clearly an abuse of the process of the court I proceed to dismiss the same with costs to the Respondent.
It is so ordered.
...................................................
HON. E. O. OBAGA
JUDGE
RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 25TH DAY OF MAY, 2026.
IN THE PRESENCE OF:
Ms. Thuku for Dr. Musau for Plaintiff.
1st Defendant in person.
Court assistants – Kilonzo and Musyoki
| ELC NO. E011 OF 2020 4 | Page |