[2017] KEHC 3167 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. SUCCESSION CAUSE NUMBER 158 OF 2016

In the Matter of the Estate of FREDRICK M’ITHINJI (DECEASED)

MERU BAKERS LTD ………………….....PETITIONER/RESPONDENT

Versus

JOSEPH GITONGA …………………………………………. APPLICANT

RULING

1. By a Summons dated 13th February, 2017 expressed to be brought under Rule 63 of the Probate and Administration Rules as well as Order 45 of the Civil Procedure Rules, the Applicant prayed that the order of this Court made on 7th February, 2017 be reviewed and set aside. The grounds upon which the application was based were set out in the body of the Summons and the Supporting Affidavit of JOSEPH KITHINJI GITONGA, the Applicant sworn on 13th February, 2017 which was that, the Applicant had not been given a hearing before the order of 2nd February, 2017 was made.

2. In the Supporting Affidavit, the Applicant swore that he had learnt from his village on the 9th February, 2017 that he had been appointed to take a grant which he knew nothing about whereby he instructed his Advocate to peruse the court register. That on perusal, he discovered the existence of these proceedings. He denied the contents of the Affidavit of service of Geoffrey Mburugu M’Mukiri that he had been served with the Petitioner/Respondents application dated 13th December, 2016 and the hearing notice dated 26th January, 2017 respectively.

3. However, the Applicant admitted having received a phone call on 26th February, 2017 from a Mr. Mburugu who informed him that he was travelling to Nairobi to effect service of summons upon him. That later however, the aforesaid Mr. Mburugu called and informed him that he had sent the documents by shuttle which was to deliver the documents. That he was still to receive the said documents. The Applicant further averred that at one time he was working at AMBANK HOUSE but he had retired therefrom. The Applicant therefore sought that he should be given an opportunity to resist the Respondents application on merit.

4. The application was resisted by the Respondent through the Replying Affidavit of JOEL MURIUKI sworn on 21st March, 2017. In the said Affidavit which had been primariry sworn in opposition to the Summons dated 3rd March, 2017 (which was determined on 3rd May, 2017), the deponent stated that the current application was tailor-made to cause unnecessary delay in the dispensation of justice.

5. Mr. Mwanzia for the Applicant submitted that service of process if the basis of a fair trial; that the Applicant had not been served with the application that resulted in the impugned order; that while the process server clearly knew the Applicant, he never served him in Nairobi as alleged. He urged that the Application be allowed. On his part, Mr. Ngunjiri learned Counsel for the Respondent submitted that the Application was meant to delay Civil Suit No. 112 of 1996. That there was an Affidavit of service on record whose only error was the street where Ambank House was situate. That in any event, since the Applicant had not denied being related to the deceased, nothing will change even if the Application was allowed. He urged that the Application be dismissed.

6. I have carefully considered the Affidavits on record and the submissions of learned Counsel. I have also considered the record. The record shows that on 13th December, 2016, the Respondent applied for the Applicant to be appointed the administrator of the estate of the late FREDRICK M’ITHINJI. That application came before me for hearing on 7th February, 2017 and was allowed because it was undefended. The same was allowed on the basis of the Affidavit of Service of Geoffrey Mburugu M’Mukiri sworn on 27th January, 2017.

7. The only issue for determination here is whether on the material on record, the Applicant was served with the application and hearing notice that gave rise to the order complained of. There are two conflicting Affidavits on record; that of the process server confirming service of process upon the Applicant and the Applicant’s strenuous denial of service. The general rule is that where a party denies service, it is incumbent upon him to apply for the process server to be called to be cross-examined on his affidavit of service. This is so because, it is difficult for the court to decide, which of the two affidavits to believe. See the case of Karatina Garments Ltd v David Nyanarua [1976] Eklr.

8. In the present case however, I do not think that failure to call the process server was fatal to the Applicants denials. In civil matters, the burden of proof is always on the person who alleges (See Section 107 of the Evidence Act). That burden does not shift. However, the incidence of burden keeps on shifting (See Section 108 of the Evidence Act). In the present case, the process server stated on oath that he had served the Applicant in a particular manner thereby shifting the evidentiary burden to the Applicant. The process server stated in paragraph 3 of his Affidavit of Service thus:

“3. That on 27th January, 2017 I proceeded to the (sic) Nairobi and after calling him on mobile number 0722861240 he responded and (sic) told me to wait for him at EMBARK House Kemu University way and I tendered upon him the aforesaid document. He accepted service took the same (sic) but refused to sign at the back of the attached copy returned herein above.”

9. From the foregoing, it is clear that the process server travelled to Nairobi on 27th January, 2017, he called the Applicant on the mobile telephone number belonging to the Applicant who informed him to wait for him at the named building. That he thereupon served him with process. The process server then came back to Meru, prepared his Affidavit of service and had the same commissioned by Elijah Ogoti, Commissioner of Oaths on the same day.

10. To these allegations, the Applicant admitted receiving a call from the process server on the 26th January, 2017 and averred that the process server informed him that the documents had been sent through a shuttle and that they will be delivered to him. That that was the last he heard from the process server. He concluded that as at the time he was swearing the affidavit, he had not received the documents.

11. Once the Applicant denied being served at either ‘Embark House’ of ‘Kemu University way’ or AmBank House of University Way and deposed that the process server informed him that the documents were to be delivered by a shuttle, the incidence of burden shifted to the process server to deny or confirm that fact. The process server did not deny those allegations by the Applicant. The incidence of burden of proof fell and remained with him which he failed to discharge.

12. One other issue, this Court has already observed that the process server swore that he travelled to Nairobi on the 27th January, 2017, served the Applicant at Nairobi, returned to Meru, drew the Affidavit of Service and had it commissioned by Mr. Ogoti Esq on the same day. The Court takes judicial notice of the distance from Meru to Nairobi and the time one will take to travel there and back. See Section 60 (1) of the Evidence Act and the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2015] Eklr.

13. The process server did not specify the time he allegedly served the Applicant. That would not only have given credence to his allegation of having served the Applicant, but it would also have given the Court an indication of how it was possible for him to travel to Nairobi, return to Meru draw and have the Affidavit of Service commissioned on the same day.

14. Rule 15 of Order 5 of the Civil Procedure Rulesrequires the process server to state the time and manner in which he effects service. To the extent that the process server failed to state the time he allegedly served the Applicant, the Affidavit of service of Geoffrey Mburugu M’Mukiri sworn on 27th January, 2017 is incurably defective and cannot be relied on. This is for reasons that the Court has already alluded to, where service is alleged to have been effected over 300kms away then the Affidavit is prepared and commissioned on the same day.

15. In this regard, in so far as the Court relied on the aforesaid Affidavit of service to make the ex-parte order of 7th February, 2017, that order cannot stand. The Applicant has proved on a balance of probability that he was never served with both the application dated 13th December, 2016 and the hearing notice for the hearing thereof.

16. Accordingly, the Court finds the application dated 13th February, 2017 to be meritorious and the same is hereby allowed as prayed.

DATED and DELIVERED at Meru this 5th day of October, 2017.

A. MABEYA

JUDGE