[2017] KEELC 2138 (KLR)
The court found that the contents of the return of service were fully captured in the judgment and that the process server's affidavit indicated service was effected on the 2nd, 4th, and 5th defendants. The court noted that the testimony of the 2nd plaintiff, which stated that only the 2nd defendant was alive at the...
Source-derived case information.
- Citation
- [2017] KEELC 2138 (KLR)
- Parties
- Plaintiff: Henry Muriira Kirubua; Plaintiff: Solomon Mpekethu; Defendant: Lucia Ngiti; Defendant: Paul Riingu; Defendant: Kinyua M'Ngiti; Defendant: Ciontungi M'Ngiti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 87 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Judgment
- Outcome
- application dismissed
- Judges
- LN Mbugua
- Legal Topics
- Review of Judgment, Service of Process, Affidavit Evidence, Variance in Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Muriira Kirubua
Plaintiff
Solomon Mpekethu
Plaintiff
Lucia Ngiti
Defendant
Paul Riingu
Defendant
Kinyua M'Ngiti
Defendant
Ciontungi M'Ngiti
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the judgment entered on 12:11:15 should be set aside on grounds of error apparent on the face of the record.
- 2 Whether there was a contradiction in the affidavits of service regarding service on the defendants.
- 3 Whether the court should review its judgment under Order 45 Rule 1 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the contents of the return of service were fully captured in the judgment and that the process server's affidavit indicated service was effected on the 2nd, 4th, and 5th defendants. The court noted that the testimony of the 2nd plaintiff, which stated that only the 2nd defendant was alive at the material time, was at variance with the return of service. The court held that there was no error apparent on the face of the record and that the application for review was unmerited. Consequently, the application to set aside the judgment was dismissed.
Court Disposition
application dismissed
Orders
- The application for review is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
CIVIL SUIT NO. 87 OF 2005
HENRY MURIIRA KIRUBUA & ANOTHER................................PLAINTIFF
VERSUS
LUCIA NGITI & 4 OTHERS.....................................................DEFENDANT
R U L I N G
1. This ruling is in respect of the application dated 02:12:15, where applicant prays that :-
- The Judgment entered on 12:11:15 be set aside.
- The Court to find that there is no contradiction at all in the affidavits of service filed relating to service effected on 21:08:2014, and 22:10:15
- The Court to find that there is an apparent error on the face of the record.
2. In support of the application are grounds set out in the affidavit of Solomon Mpekethu, the 2nd Plaintiff who avers that the service of 22:19:15 was with regard to the 2nd Defendant only (Paul Riingu) and that at no time did the process server state that he had effected service upon 4th and 5th Defendant in October 2015. He also avers that in his statement filed on 71. 10. 15, he had indicated that the 4th Defendant died in September 2015 while 5th Defendant had voluntarily left the suit premises. Applicant therefor pray that the Judgment be reviewed and set aside.
Under order 45 rule 1 of the Civil Procedure Rules:-
"any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed.....................on account of same mistake or error opponent on the face of record ............may apply for a Review of the Judgment to the Court which passed the decree................."
3. In ODUNGA'S DIGEST ON CIVIL CASE LAW AND PROCEDURE VOL. IV ( on wrongful dismissal) , it is stated that:-
"there are no limits or restrictions on the Judge's discretion except that if he does vary the Judgment, he does so on terms that are JUST".
4. This Court has perused the records and I find that the contents of the return of service in question are entirely captured in the body of the Judgment. In paragraph 2 of the said return of service, Joseph Kithinji states that " on 27th July, 2015, I received court hearing notice dated 22:07:15 That hearing Notice read as follows:-
"TAKE NOTICE that this case has been fixed for hearing on 12:10:15" Dated at Meru this 22nd day of July, 2015".
5. This is Return of Service is the one where the Process Server stated that he served 2nd Defendant along with Kinyua M'Ngiti ( 4th Defendant ) and Ciontungi M'Ngiti, 5th Defendant.
6. The contents of the aforementioned Return of Service is still at variance with the testimony of 2nd Plaintiff who on 29:10:15 stated therein:-
"we have sued 5 people some of these people have died. The only person alive is Paul Riungu M'ingiti, the second defendant."
7. The Judge was not dealing with the Return of Service of 21:08:2014 or that of 22:10:15".
8. This Court is a Court of law as much as it is a Court of record. The testimony of PW1 remains at variance with the Return of Service in respect of the hearing notice dated 22:07:15.
9. In the circumstances, I find that the application for review is unmerited . The application is hereby dismissed.
DELIVERED, DATED AND SIGNED AT MERU THIS 12TH DAY OF JULY, 2017 IN THE PRESENCE OF:
C:A Janet
Parties absent
HON. L. N. MBUGUA
JUDGE