[2013] KEHC 841 (KLR)
The court found that the process server's remarks indicated service was made on Gregory Mwenda M'Ikwi, not Michael Kamau Mbugua, the 2nd defendant. This discrepancy raised reasonable suspicion as to whether the 2nd defendant was properly served. The court held that the irregularity in the affidavit of service was...
Source-derived case information.
- Citation
- [2013] KEHC 841 (KLR)
- Parties
- Plaintiff: Grace Kananu Rimita; Defendant: Gregory Mwenda M'Ikwi; Defendant: Michael Kamau Mbugua
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 98 of 2012
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Service of Process, Setting Aside Judgment, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Grace Kananu Rimita
Plaintiff
Gregory Mwenda M'Ikwi
Defendant
Michael Kamau Mbugua
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the 2nd defendant was properly served with summons to enter appearance.
- 2 Whether the interlocutory judgment entered against the 2nd defendant should be set aside due to improper service.
Ratio Decidendi
The court found that the process server's remarks indicated service was made on Gregory Mwenda M'Ikwi, not Michael Kamau Mbugua, the 2nd defendant. This discrepancy raised reasonable suspicion as to whether the 2nd defendant was properly served. The court held that the irregularity in the affidavit of service was material and sufficient to set aside the interlocutory judgment entered against the 2nd defendant. The court emphasized that a party should not be condemned unheard, and proper service is a fundamental requirement for the validity of any judgment. Consequently, the interlocutory judgment was set aside and the 2nd defendant was granted leave to file his statement of defence.
Court Disposition
application allowed
Orders
- The interlocutory judgment entered against the 2nd defendant is set aside.
- The 2nd defendant is granted leave to file his statement of defence.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
E & L 98 OF 2012
GRACE KANANU RIMITA...................................................................PLAINTIFF
VERSUS
GREGORY MWENDA M'IKWI..........................................................1ST DEFENDANT
MICHAEL KAMAU MBUGUA........................................................2ND DEFENDANT
R U L I N G
The application herein is dated 22nd March, 2013 and seeks orders:
THAT this application be heard on priority basis.
THAT the Interlocutory Judgment entered against the 2nd defendant herein be set aside and the 2nd defendant be granted leave to file his statement of Defence.
THAT the costs of this Application be provided for.
The application is supported by the affidavit of Michael Kamau Mbugua and is based, inter alia on the following grounds:-
(a) THAT the 2nd defendant was never served with summons to enter appearance and requisite proceedings herein.
(b) THAT the affidavit of the process server herein is a false Affidavit and the same is fatally defective.
THAT the 2nd defendant/applicant was therefore condemned unheard contrary to the rules of natural justice.
The application was heard interpartes on 8. 7.2013. the applicant submitted that he was not served properly and particularly stressed that a comment on the reverse of the Summons Titled. “Process Server's Remarks.”
“Served upon Gregory Mwenda M'Ikwi on 25. 9.2013 at Makutano Market (Meru County). He accepted the service, took the documents and refused to sign.”
Signature.
The submissions of parties amounted to the presentation of two diametrically opposed positions. The applicant insisted that the Interlocutory Judgment was irregular and should be set aside. The respondent insisted that the service upon the 2nd defendant was properly done.
Having looked at the submissions and averments of the parties, I note that the process server had indicated that he had served Michael Mwenda M'Ikwi. The 2nd defendant is Michael Kamau Mbugua. The written remarks by the process server may have been made mistakenly but they are material. I, therefore, find that the remarks are serious enough to raise reasonable suspicion regarding whether the 2nd defendant was properly served or not. Having made this finding, I do not deem it necessary to delve into the other issues raised in the averments and during submissions.
In the circumstances, the Interlocutory Judgment entered against the 2nd defendant, the applicant herein , is set aside and the applicant is granted leave to file his Statement of Defence.
Costs will be in the cause.
Dated, Signed and delivered in Open Court at Meru this 19th day of September, 2013.
Cc. Mwonjaru/Daniel
Mwirigi present for plaintiff/respondent
Kieti h/b Kiambi for 2nd defendant/Applicant
P. M. NJOROGE
JUDGE