[2020] KEELC 1163 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAJIADO

ELC CASE NO. 80 OF 2018

(FORMERLY NAIROBI ELC NO. 1340 OF 2013)

SIKEMPEI SUYIANGA

(Suing as legal representative of the estate ofJEROMANI KAISE – deceased)........PLAINTIFF

VERSUS

MUTUNKEI OLE LESINKO..............................................................................1ST DEFENDANT

LORNGUSUA GROUP RANCH.......................................................................2ND DEFENDANT

KAJIADO LAND REGISTRAR........................................................................3RD DEFENDANT

RULING

What is before Court for determination is the 1st Defendant’s Notice of Motion application dated the 27th April, 2020 brought pursuant to Order 10 Rule 11 and Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act as well as Article 159 (2) (a), (b) and (d) of the Constitution. The 1st Defendant prays for the following orders:

1. Spent

2. Spent

3. The Honourable Court be and is hereby pleased to set aside the ex parte judgement delivered on 27th November, 2019 and consequential decree issued on 9th December, 2019 and all other consequential orders thereon.

4. That the 1st Defendant be granted leave to file a defence out of time.

5. That the costs of this application be provided for.

The application is premised on the grounds on the face of it and the supporting affidavit of MUTUNKEI OLE LESINKO where he deposes that judgement herein was entered on 27th November, 2019 and a subsequent Decree extracted. He claims he was not aware of the suit herein and only came to know of its existence when he sought to transfer the suit land to a third party whom he had sold to the said land and encountered an encumbrance in the register showing a Decree had been issued in respect to it. He denies being served with summons and pleadings herein. He confirms instructing his advocates when he became aware of this suit. He disputes the affidavit of service of Isaac Makau Malonza sworn on 16th December, 2013 and insists the said contents are false as he never met the deponent at the Chief’s office let alone at Bissil Town. Further, that the Deponent did not indicate the phone number. He contends that he has not seen his signature in the summons returned to court together with the affidavit as required. He avers that he will suffer irreparable damage if stay is not granted and judgement set aside. He reiterates that his draft defence marked as annexure ‘MOL 4’ raises triable issues.

The Plaintiff opposed the application and filed a replying affidavit sworn by SIKEMPEI SUYIANGA where she deposes that this case was filed on 6th November, 2013 in Nairobi and the 1st Defendant was promptly served with the pleadings as per the affidavit of service. She contends that a Decree of the Court herein has already been enforced since the suit land is now in the names of JEROMANI KAISE (deceased). She avers that the only reasonable thing for the Applicant to do, is to institute a case against the deceased estate. She explains that the suit land Kajiado/ Lorngusua/ 184 belonged to her late father as per the attached Group Ranch List. She insists the 1st Defendant does not reside on the suit land. She states that the 1st Defendant has indicated that he encountered an encumbrance on the land but failed to move the Court from 2012 todate. She reiterates that the 2nd Defendant supports her case and that is why they are not bothered. Further, that the draft Defence by the 1st Defendant is a sham since he bought suit land from TURERE OLE MASIANE KAISE who is not the deceased (JEROMANI KAISE) or the Plaintiff. She noted that the 1st Defendant has not challenged the allegations of fraud. Further, the 1st Defendant was irregularly awarded the suit land as per the Green Card.

The 1st Defendant and the Plaintiff filed their respective submissions to canvass the instant application.

Analysis and Determination

Upon consideration of the instant Notice of Motion application including the parties’ affidavits and rivalling submissions, the following are the issues for determination

· Whether the ex parte judgement entered on the 27th November, 2019 as well as the Decree issued on 9th December, 2019 should be set aside.

· Whether the 1st Defendant should be allowed to file a Defence out of time

· Who should bear the costs of the application?

As to whether the ex parte judgement entered on the 27th November, 2019 as well as the Decree issued on 9th December, 2019 should be set aside and the 1st Defendant allowed to file his Defence out of time. The 1st Defendant in his submissions reiterated his claim above and insisted he was not served with summons. Further, that his signature is not in the summons that were returned to court as required by law. He contended that his draft Defence raises triable issues since he has denied having been irregularly registered as owner of the suit land and he is the registered proprietor. He relied on the decisions of Karani V Bildad Wachira (2016) eKLR which favourably cited the decision of Richard Nchapai Leiyangu Vs IEBC & 2 Others; Fidelity Commercial Bank Ltd Vs Owen Amos Ndungu & Another HCCC No. 241 of 1998 ( UR); Patel V East Africa Cargo Handling Services Ltd (1974) EA 75 and Signature Tours & Travel Limited V National Bank of Kenya Limited ( 2018) eKLR to buttress his averments. He further submitted that the Plaintiff should be made to bear the costs of this application. The Plaintiff submitted that the Order of stay has been overtaken by events. Further, that the 1st Defendant was notified of the judgement as required by law but he failed to move to court with speed and the delay is inordinate. She further submitted that the affidavit of service is very clear as to what transpired during the first service. Further, the 1st Defendant has not sought to cross examine the process server and hence the affidavit of service stands unchallenged. She contends that the 1st Defendant did not answer to the allegations in the Plaint and the said TERERE OLE MASIANE KAISE whom he bought the parcel of land from, is a stranger to these pleadings.

Order 10 Rule 11 of the Civil Procedure Rules provides that; ‘where judgement has been entered under this order, the court may set aside or vary such judgement and any consequential decree or order upon such terms as are just.’

In the case of Patel -vs- E.A. Cargo Handling Services Ltd [1974] EA75 at page 76 C and E the court held as follows: -

‘There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgement except that if he does vary the judgement, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.’

The court further held as follows:-

‘That where there is a regular judgement as is the case here, the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect, defence on the merits does not mean a defence that must succeed. It means a ‘triable issue’ that is an issue which raises a prima facie defence which should go to trial for adjudication’

I note the fulcrum of the dispute herein revolves around land which emanated from the group ranch. The Court entered judgement in favour of the Plaintiff and ordered that the suit land be reverted to the estate of the late JEROMANI KAISE who was member No. 55 at the Lorngusua Group Ranch. The 1st Defendant seeks to set aside the said judgement contending that he is the registered proprietor of the said land having purchased the same from TURERE OLE MASIANE KAISE vide a Sale Agreement dated the 8th February, 2008 which he did not provide as an annexure. The 1st Defendant claims that he was not served with summons to enter appearance and neither were the summons which were filed in Court signed by him. However, upon perusal of the affidavit of service, sworn by Isaac Makau Malonza on the 16th December, 2013 and filed in court on 17th December, 2013, I note the deponent has described that he travelled to Bissil Town and proceeded to the Chief’s office where he met the Chairman of the 2nd Defendant as well as the 1st Defendant and served them, which documents they accepted and signed. The 1st Defendant disputes the service but from the summons which were returned to Court, it indicates they were served on 6th December, 2013 at 12 pm and his signature is indicated therein. I note the Defendant has not signed the affidavit in support of the instant application hence as a Court, I find that the burden of proof was upon him to prove that the said signature was not his. I further note that the 1st Defendant has not sought to cross examine the said process server. In the circumstance, I am not convinced with the 1st Defendant’s averments that he was not duly served and will proceed to find the aforementioned affidavit of Isaac Makau Malonza as conclusive proof of service.

The 1st Defendant has claimed his draft Defence raises triable issues. From a keen perusal of the draft Defence, he claims he purchased the said land from TURERE OLE MASIANE KAISE. He has not challenged the allegations of fraud pleaded in the Plaint. On perusal of the Certificate of Official Search and Certificate of Title, which are part of the Court Record, there is no indication that the said TURERE OLE MASIANE KAISE ever owned the suit land. From the said documents it indicates that the 1st Defendant got the said transfer directly from the group ranch. Insofar as a right to fair hearing is a Constitutional right, the said right should not be allowed to infringe upon the opponent. Further, the person seeking a right to fair hearing owes the Court full disclosure of material facts supported by documents. Based on the facts as presented, I do not find the draft statement of Defence merited.

It is against the foregoing that I find the application dated the 27th April, 2020 unmerited and will dismiss it with costs to the Plaintiff.

Dated signed and delivered in open court at Kajiado this 30th day of September, 2020.

CHRISTINE OCHIENG

JUDGE