[2018] KEELC 3758 (KLR)
The court found that the affidavit of service on record indicated service of summons before the suit was actually filed, which was irregular and cast doubt on the validity of service. The pleadings and payment records confirmed that the originating summons was filed after the purported date of service. As proper...
Source-derived case information.
- Citation
- [2018] KEELC 3758 (KLR)
- Parties
- Plaintiff: Francis Kaai M’Rintuara; Plaintiff: Franklin Murithi Kaai; Defendant: Samson Mworia Rukwaru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 93 of 2015
- Procedural Posture
- Originating Summons / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- Application allowed; interlocutory judgment and consequential orders set aside; applicant granted leave to defend; costs to respondent.
- Legal Topics
- Service of Process, Setting Aside Judgment, Affidavit of Service, Leave to Defend
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kaai M’Rintuara
Plaintiff
Franklin Murithi Kaai
Plaintiff
Samson Mworia Rukwaru
Defendant
Procedural Posture
Originating Summons / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the applicant was properly served with summons to enter appearance.
- 2 Whether the interlocutory judgment was regularly entered against the applicant.
- 3 Whether sufficient cause has been shown to set aside the interlocutory judgment.
Ratio Decidendi
The court found that the affidavit of service on record indicated service of summons before the suit was actually filed, which was irregular and cast doubt on the validity of service. The pleadings and payment records confirmed that the originating summons was filed after the purported date of service. As proper service is a prerequisite for entering interlocutory judgment, and the applicant was not properly served, sufficient cause was shown to set aside the judgment. The court exercised its discretion to allow the application, set aside the interlocutory judgment, and granted the applicant leave to defend the suit.
Court Disposition
Application allowed; interlocutory judgment and consequential orders set aside; applicant granted leave to defend; costs to respondent.
Orders
- The interlocutory judgment entered herein and all consequential orders are hereby set aside.
- The applicant is granted leave, 14 days to file and serve his memorandum of appearance and response to the Originating Summons.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO 93 OF 2015 (OS)
FRANCIS KAAI M’RINTUARA.................1st PLAINTIFF
FRANKLIN MURITHI KAAI...................2ND PLAINTIFF
VERSUS
SAMSON MWORIA RUKWARU...................DEFENDANT
RULING
1. Applicant/defendant has filed an application dated 5. 9.2016 seeking orders for the setting aside of the Interlocutory Judgment dated 5. 9.2016. Applicant desires to be given an opportunity to file his defence.
2. The basis upon which the application is made is that applicant was not served with the suit papers.
3. This claim is denied by the respondents who aver that indeed the applicant had been served with the suit documents as well as all the hearing notices.
4. The application was canvassed by way of written submissions which submissions have been duly filed and exchanged.
5. Applicant contends that he was served with the hearing notices of the case and that is how he came to know about the matter. He however submits that he has never been served with summons to enter appearance.
6. The respondents on the other hand aver that the interlocutory judgment was regularly entered against the applicant. In support of their arguments, respondents have proffered the following authorities;
- Philip Kiptoo Chemold & Mumias Sugar Co. Ltd versus Augustine Kubende (1982 – 1988) KAR 1036.
- Amayi Okumu Kajiaka & 2 others versus Moses Okware Opari & Another Kisumu court of Appeal C.A No 15 of 2010.
- Shah versus Mbogo 1967 EA 116.
- Shamsudin Jiwah Mitha versus Abdulaziz Ali Ladak (1960) IEA 1054.
7. I note that the dispute is on service of summons to enter appearance and not the hearing notices of the case.
8. Firstly, I find that the respondents have not annexed the affidavit of service in respect of the suit papers yet they have availed the other affidavit of services in respect of the hearing notices as annexture FMK 2 and 3 respectively.
9. Nevertheless, that affidavit of service in respect of the suit papers is on record in this file. It was filed on 28. 1.2016. It shows that service was affected upon the applicant on 18. 11. 2015. The originating summons and its supporting documents were however filed on 8. 10. 2016. How can it be that service of summons to enter appearance were being served before the filing of the suit. Even the request for judgment was made on 28. 1.2016, several months before the filing of the suit.
10. What is apparent is that the pleadings of the plaintiff are dated 9. 2.2015 and the assessment for filing fees was done on same date that is 9. 2.2015. The sum for filing fees was Kshs.1,500 + 150 + 75 hence a total of Kshs.1,800. This amount was paid on 8. 10. 2016 which gives credence to the stamp on the Originating Summons for the date of 8. 10. 2016.
11. I therefore conclude that applicant has shown sufficient cause as to why he did not enter appearance, see; Shamsudin Jiwah Mitha versus Abdulaziz Ali Ladak (Supra).
12. In the circumstances the application dated 25. 4.2017 is allowed in the following terms:
(i) The interlocutory Judgment entered herein and all consequential orders are hereby set aside.
(ii) The applicant is granted leave, 14 days to file and serve his memorandum of appearance and response to the Originating Summons.
(iii) Respondent is condemned to pay costs of this application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 18th APRIL, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Kiongo holding brief for E. Mwangi for applicant – present
M. Kariuki holding brief for Ashaba for respondents
HON. LUCY. N. MBUGUA
ELC JUDGE