[2014] KEELC 514 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC. CASE NO. 141 OF 2011

BERNARD MBUGUA WAIRIMU…… ……...……PLAINTIFF/APPLICANT

VERSUS

ESTHER NYATHIRA MUHIA…………….......DEFENDANT/RESPONDENT

RULING

Coming before me for determination is the Notice of Motion dated 3rd July 2013 in which the Defendant/Applicant seeks for the following orders:

Spent.

Spent.

That this honourable court be pleased to set aside and/or vary the judgment entered herein on 14th June 2013 in default of appearance and Defence.

That the Defendant be granted leave to file and serve her written Statement of Defence out of time for the matter to be heard and determined inter-partes on merit.

That costs of this Application be in the cause.

The Application is supported by the grounds appearing on the face of it together with the Supporting Affidavit of the Defendant, Esther Nyathira Muhia, sworn on 3rd July 2013 in which she averred that she was never served with Summons to Enter Appearance and the Plaint in this matter as alleged in the return of service sworn by James Kanyi Kagwima to enable her to enter appearance and file a Defence. She stated further that she came to know the existence of this suit after she was served with a copy of the Judgment dated 14th June 2013 by the Area Chief on 24th June 2013. She further averred that the Affidavit of Service sworn by James Kanyi Kagwima is false and misleading as she does not know him and has never seen him. She further indicated that she would not have ignored court process had she been served since the Suit Property is where she has resided since 2004 to date and that she has developed her own home and constructed rental shops and houses where she collects rent to earn a living. She further emphasized that her failure to enter appearance and file a Defence was not deliberate but was occasioned by lack of proper service on her. She further stated that she was surprised that the Plaintiff/Respondent had pursued Succession Cause No. 515of2009 in the Thika Law Court without notifying her and others who had bought portions of the Suit Property to enable her to file her objection or protest. She further contended that the grant obtained by the Plaintiff/Respondent was done fraudulently and that she had since filed for revocation of grant in Succession Cause No. 1560of2013 in the Family Division, Nairobi. She further stated that the Plaintiff never cited the said Salome Njoki Nyoro who sold the portion of land to her. She contended that she has a valid and reasonable Defence that raised triable issues and she should be accorded her day in court.

The Application is contested. The Plaintiff/Respondent, Benard Mbugua Wairimu, filed his Replying Affidavit sworn on 1st August 2013 in which he averred that the Defendant/Applicant’s assertions that she was not served with court process are false as she was duly served by the process server in his presence as he is the one who led the process server on where to find her. He further stated that as regards the Succession Cause he filed in Thika Law Courts, he was under no legal duty to inform the Defendant since she is a trespasser on the Suit Property. He further indicated that all the other persons who had purported to by portions of the Suit Property from Salome Njoki had been resettled elsewhere by the said Salome Njoki and only the Defendant adamantly refused to move and be resettled like the rest. He further stated that he was under no obligation to cite the said Salome Njoki as she is not a beneficiary of his deceased mother. He also stated that the Defendant has no locus standi to file any proceedings for revocation of grant issued by the Succession court in Thika as she is not a beneficiary of his deceased mother.

I have considered the Defendant/Applicants written submissions as well as the Plaintiff’s written submissions.

The issue I need to determine is whether or not there was proper service upon the Defendant in considering whether or not to set aside or vary the ex parte judgment entered against her.

The guiding legal provision in this matter is Order 10 Rule 11 which provides as follows:

“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.”

What terms are just in this case? It would appear to me that this matter revolves around my determination as to whether there was proper service of court process upon the Defendant or not. I have perused the Affidavit of Service sworn by James Kanyi Kagwima on 2nd June 2011 in which he averred that he effected personal service of the Summons to Enter Appearance and the Plaint upon the Defendant on 6th May 2011 in the presence of the Plaintiff. He carefully indicated that while he did not know the Defendant, she was pointed out to him by the Plaintiff in this suit who previously knew her. This position is corroborated by the testimony of the Plaintiff who confirmed that he did in fact accompany James Kanyi Kagwima to the Defendant’s place of abode which is the Suit Property. The Plaintiff confirmed that he pointed out the Defendant to the process server and he witnessed the process server effecting personal service of the court process upon the Defendant, who declined to sign the same. From where I sit, it seems quite unbelievable that the Plaintiff denies having been served with court process as she has. It would appear to me that the Defendant was duly served with court process in this case but chose to ignore the same hoping the case would somehow go away. I am therefore inclined to believe both the process server and the Plaintiff on this issue of service. Accordingly, I find that the Defendant was duly served with court process in this case and proceeded to ignore the same at her own peril. I therefore decline to set aside or vary the Judgment I entered in this case.

I therefore dismiss this Application with costs to the Plaintiff.

SIGNED AND DELIVERED AT NAIROBI THIS _14TH _____DAY OF ___FEBRUARY__________2014

MARY M. GITUMBI

JUDGE