[2017] KEELC 2106 (KLR)
The court determined that before making any further orders regarding the defendants' application to set aside the ex parte judgment, it is necessary to establish whether the defendants were properly served with the plaint and summons. The court found that the authenticity of service, as attested by the process...
Source-derived case information.
- Citation
- [2017] KEELC 2106 (KLR)
- Parties
- Plaintiff: Joel Kiragu Karigi; Plaintiff: Bernard Karimi Gacharia; Plaintiff: Joseph Ngacha Karigi; Defendant: Esther Njiraini; Defendant: Felister Wanjiku; Defendant: Muria-Igiri Nduiga; Defendant: Munguti Njau Karaga; Defendant: John Charibu; Defendant: Judy Kagio; Defendant: Lilian Nyaguthii; Defendant: Mithamo Gateru; Defendant: Ann Wambui; Defendant: Gicimu Kanji
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2014
- Procedural Posture
- Ruling / Interlocutory Application to Set Aside Ex Parte Judgment and Application to Dismiss for Want of Prosecution
- Outcome
- Process server to be summoned for examination on service; further orders deferred pending confirmation of service.
- Judges
- BN Olao
- Legal Topics
- Ex Parte Judgment, Service of Process, Setting Aside Judgment, Want of Prosecution, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kiragu Karigi
Plaintiff
Bernard Karimi Gacharia
Plaintiff
Joseph Ngacha Karigi
Plaintiff
Esther Njiraini
Defendant
Felister Wanjiku
Defendant
Muria-Igiri Nduiga
Defendant
Munguti Njau Karaga
Defendant
John Charibu
Defendant
Judy Kagio
Defendant
Lilian Nyaguthii
Defendant
Mithamo Gateru
Defendant
Ann Wambui
Defendant
Gicimu Kanji
Defendant
Procedural Posture
Ruling / Interlocutory Application to Set Aside Ex Parte Judgment and Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the defendants were duly served with the plaint and summons as required by law.
- 2 Whether the ex parte judgment delivered on 27th October 2015 should be set aside for lack of service.
- 3 Whether the defendants' application to set aside judgment should be dismissed for want of prosecution.
Ratio Decidendi
The court determined that before making any further orders regarding the defendants' application to set aside the ex parte judgment, it is necessary to establish whether the defendants were properly served with the plaint and summons. The court found that the authenticity of service, as attested by the process server's affidavit, is central to the validity of the ex parte judgment. Given the doubts raised about service and the absence of a substantive response from the plaintiffs, the court held that the process server must be summoned to confirm service. Only after this factual determination can the court proceed to rule on the application to set aside the judgment or the application for...
Court Disposition
Process server to be summoned for examination on service; further orders deferred pending confirmation of service.
Orders
- The process server, Francis Kunga Mugi, is to be summoned to appear in court on 13th July 2017 to confirm if he served the defendants.
- The court will consider the defendants' application dated 22nd December 2015 and make a ruling thereafter.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 11 OF 2014
JOEL KIRAGU KARIGI ……………………………1ST PLAINTIFF
BERNARD KARIMI GACHARIA………………..…2ND PLAINTIFF
JOSEPH NGACHA KARIGI…………………..…...3RD PLAINTIFF
VERSUS
ESTHER NJIRAINI ……………………………..1STDEFENDANT
FELISTER WANJIKU …………………….……2ND DEFENDANT
MURIA-IGIRI NDUIGA ………………………....3RD DEFENDANT
MUNGUTI NJAU KARAGA……………………..4TH DEFENDANT
JOHN CHARIBU ……………………………….5TH DEFENDANT
JUDY KAGIO …………………………………....6TH DEFENDANT
LILIAN NYAGUTHII……………………………..7TH DEFENDANT
MITHAMO GATERU ……………………………8TH DEFENDANT
ANN WAMBUI ……………………………….….9TH DEFENDANT
GICIMU KANJI ………………………..…..…..;10TH DEFENDANT
RULING
The parties herein are acting in person and there is usually considerable difficulties in handling matters where parties have no legal representation. The Court must nonetheless try and serve justice to the parties notwithstanding such challenges.
On 27th October 2015, I delivered a judgment in favour of the plaintiffs and ordered that the defendants do remove the structures put on the road leading to the plaintiffs properties within (60) sixty days or else be evicted therefrom. That judgment was obtained ex-parte as the defendants though served by a process server by the name FRANCIS KUNGA MUGI CPS No. 002024 neither entered appearance nor filed any defence.
I now have two applications pending my determination. The first application is by the defendants dated 22nd December 2015 and it seeks the main prayer that this Court’s judgment dated 27th October 2015 be set aside together with the Decree and consequential orders. That application is supported by the affidavit of FELISTER WANJIKU sworn on behalf of the other defendants and the gist of their complaint is that they were never served with the plaint and summons herein and that the judgment was obtained stealthily, irregular and unlawfully. Although the application purports to have been drawn by an advocate called Francis Kinyanjui, it is clear to me that this must be among the several con-men masquerading as advocates in this region.
Then there is the plaintiffs’ Notice of Motion dated 31st March 2017 seeking to dismiss the defendants’ application dated 22nd December 2015 for want of prosecution. It is their case that the defendants’ application filed more than one year ago has not been prosecuted.
In response to that application, the defendants have filed a replying affidavit in which they state that they have been waiting to be informed about the out-come of that application by their advocate who has since relocated to another place and therefore they have now decided to act in person. They add further that the plaintiffs have not responded to that application and should therefore be construed as not opposing it.
It is clear to me that the person describing himself as Francis Kinyanjui advocate cannot be an advocate and must have misled the defendants. It is also clear that the plaintiffs have not filed any response to the defendants’ application seeking to have the judgment dated 27th October 2015 set aside. As stated earlier, the parties are all in person and obviously have challenges in articulating their grievances. For now, I have before me a judgment obtained against the defendants allegedly after they failed to enter appearance having been served. In the interest of justice, I find it prudent to first determine if indeed the defendants were duly served as per the affidavit of service filed herein by FRANCIS KUNGA MUGI on 2nd October 2015. I would like to confirm that indeed there was such service before I make further orders with respect to the defendants’ application dated 22nd December 2015 which must be canvassed first.
Accordingly, I make the following orders:
1. The process server namely FRANCIS KUNGA MUGI of P.O. BOX 28 KERUGOYA CPS No. 002024 be summoned to appear here on 13th July 2017 to confirm if indeed he served the defendants herein.
2. Thereafter, this Court will consider the defendants’ application dated 22nd December 2015 and make a ruling thereon.
B.N. OLAO
JUDGE
16TH JUNE, 2017
Ruling delivered, dated and signed in open Court this 16th day of June 2017
1st Plaintiff – present
2nd Plaintiff – present
3rd Plaintiff – deceased
2nd Defendant – present
5th Defendant – present
6th Defendant – present.
B.N. OLAO
JUDGE
16TH JUNE, 2017