[2017] KEHC 2859 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ENVIRONMENT AND LAND CASE NO. 11 OF 2014.

GEORGE WEPUKHULU...........................PLAINTIFF

VERSUS.

ALFRED WAFULA KHAUKA (Administrator of the

Estate of the late LUKA MASAKHA..DEFENDANT

RULING.

Background:

[1]. One Luka Masakha the registered owner of LR. E. Bukusu/S. Kanduyi/121 died and Alfred Wafula Khauka was appointed the administrator of his estate. Prior to the said Alfred Wafula Khauka being made an administrator of the Estate, one Cosmas Austin Wepukhulu objected to the grant of Letters of Administration to Alfred Wafula Khauka. In arguing his objection, he told the Court (J.K. Sergon – Judge) that he bought a portion of 3½ acres of the land in dispute in 1969 for Kshs.1,200. That he bought the same from the father of Alfred Khauka. He said he resided on the farm. That he had so resided for 40 years.

In his ruling, Sergon Judge stated as follows;

“I have considered the objection and I am not convinced that it can oust the rights of the petitioner to seek for the administration of his father’s estate. In my view the objectors rights will not be affected in any way even if the grant of representation is given to the petitioner.

In fact it will be of great help to the objector if grant is given to the Petitioner because at the end of the day the objector will have legal representative of the estate of Luka Masakha, deceased who he can sue.”

The objectors participation in the Succession Cause ended there. He continued to live on the suit land and waited patiently, up to 30/1/2013 when the grant was confirmed. Then on 17/1/2014 he filed this case for adverse possession. The respondent was served on 22/2/2014 with the pleadings. The process servers in paragraph 3 of the pleadings state;

“3. That on the same day I proceeded to the house of the plaintiff and met the wife who accompanied me and pointed out to me the home of the defendant which is next to the plaintiff’s home and identified to me by the same the said respondent.

4. That on arrival I met the said defendant with someone who was looking after his cattle.

5. That after exchanging greetings I introduced myself and the purpose of my visit and their after I tendered the said documents to him and after perusing the same he accepted service but decline to sign saying that I could have served on the firm of J.O. Makali & Company Advocates and not him”.

It is apparent from the above return of service that the applicant and the respondent truly live on the same land. The applicant’s wife pointed out the respondent, and the respondent who had previously finalized a Succession Cause in which the applicant was an objector refused to sign summons saying that it should have been sent to his lawyer in the Succession Cause, M/s J.O. Makali & Co. Advocates.

It is worth of note that the process server return of service is dated 7th March and stamped in Court on 6/6/2014 nearly two years before this application was filed.

A hearing notice for hearing the case on 08/06/2016 was served on the respondent. This hearing notice was dated 19th January 2014, by error. This is so because it is court stamped 8/6/2015. So the dating by hand of 19/1/2014 is a typographical error. A return of service of the same was filed on 28/5/2015 and received in court on 3/6/2015. The case was heard on merits on 8/6/2015.

The application:

[2]. The applicant brings this Notice of Motion under Sec. 3 3A and 63(e) of the Civil Procedure Act and under Order 12 rule 7 of the Civil Procedure Rules 2010. He seeks the orders on the face of the application inter alia that a stay of execution of the exparte Judgment and all orders be set aside pending the hearing of this application. That leave be granted to examine one Peter Masika on his affidavits of service and leave to file a Replying Affidavit. The applicants argue that he was not served and that he has a good defence with overwhelming chances of success and he should not be condemned unheard.

[3]. The respondent opposes this application. He argues that there is nothing as he has already commenced the process of execution to get title deed for his portion as per court order. He averred that the respondent was duly served with all the pleadings by the Process server on record. He further argues that there is no annexed defence.

The respondent denies that there could be a mistaken identity in serving the respondent since the parties live together and are known to each other. He denied that the proceedings in the Succession Cause ever ran parallel to this suit as alleged.

Analysis:

[4]. Having perused the entire Succession case, the application herein and all annextures, I note that the respondent herein was an objector in the Succession Cause. The Court dismissed that objection and advised him to wait for the administrators of the estate of the deceased to be appointed. He did so. He filed this suit thereafter. There were no parallel suits as alleged by the applicant. I am convinced that the parties herein live on the same land and know each other. There could not have been a case of mistaken identity in serving the applicant.

I am inclined to believe that once he got the letter of administration of the estate of the deceased and land parcel East Bukusu/South Kanduyi/121 was distributed to the heirs by the Succession Court, he was complacent and that is why he told the Process server to serve the Summons and Pleadings on M/s J.O. Makali & Co. his lawyers in the Succession Cause.

I am persuaded on balance of probabilities that the applicant was duly served with summons to enter appearance and other pleadings. He was also served with the hearing notice for the 8/6/2015 and he failed without any good reason to attend the court. He was therefore aware of the case.

The orders:

[5]. This application is not merited. It is dismissed with costs to the respondents.

Ruling read in Open Court before Mr. Murunga.

Dated at Bungoma this 4th day of october, 2017.

S. MUKUNYA

JUDGE.

In the presence of:

Court Assistant: Chemutai/Joy

Mr. Murunga for Mr. Were for the Respondent