[2016] KEELC 1230 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND COURT

ELC. CASE NO. 724 OF 2012

JOHN arap KOECH………………………………….………. PLAINTIFF

VERSUS

AINU SHAMSI AUTOMOBILE

& HARDWARE LIMITED…………..……………......1ST DEFENDANT

THE CHIEF REGISTRAR OF LANDS…..……....2ND DEFENDANT

THE COMMISSIONER OF LANDS………….……..3RD DEFENDANT

THE DIRECTOR OF SURVEYS………………….….4TH DEFENDANT

RULING

Coming up before me for determination is the Notice of Motion dated 13th June 2014 in which the 1st Defendant/Applicant seeks for orders that the Plaint dated 24th June 2013 and filed on 26th June 2013 together with the accompanying documents be struck out and this suit be dismissed with costs.

The Application is premised on the grounds appearing on its face together with the Supporting Affidavit of Abdifatah Muhumed Abdi, a director of the 1st Defendant, sworn on 13th June 2014 in which he averred that the 1st Defendant/Applicant has never been served with summons to enter appearance in this matter although a Plaint was served on 27th June 2013. He further averred that his Advocates wrote to the Plaintiff’s Advocates seeking to be served with the summons to enter appearance but that the Plaintiff’s Advocates failed to do so. He further averred that in the Plaintiff’s Affidavit of Service sworn by one Mathias Mboya, the process server does not make mention of the summons to enter appearance having been served upon the 1st Defendant/Applicant. He further averred that he does not know a Mr. Ainu Shamshi who the process server claimed to have served as a director of the 1st Defendant/Applicant opposite City Cabanas. He averred that there is no Mr. Ainu Shamshi who is a director of the 1st Defendant and that the 1st Defendant/Applicant is not situated opposite City Cabanas. He further stated that in May 2013, the Plaintiff/Respondent made an application for judgment to be entered against the 1st Defendant/Applicant and that on 11th February 2014, the Deputy Registrar gave directions that the suit should proceed to hearing on the basis that the 1st Defendant had been served with summons to enter appearance and failed to file a defence within the stipulated period. He averred that in the absence of service of summons to enter appearance, directions that the suit be set down for hearing under Order 10 Rule 9 of the Civil Procedure Rules, 2010 ought not to be maintained against the 1st Defendant/Applicant. He further averred that if this Application is not allowed, the matter will proceed to judgment and the 1st Defendant will be condemned unheard. He sought for the court to set aside all proceedings entered in default of defence on 11th February 2014 and strike out the amended Plaint.

The Application is contested. The Plaintiff/Respondent, Lt. Gen. (Rtd.) John arap Koech, filed his Replying Affidavit sworn on 20th June 2014 in which he averred that the prayers sought in this Application cannot be granted as they were overtaken by events in that this suit has already been fully heard and submissions tendered and further that judgment in default of entering appearance and defence was requested and entered against the 1st Defendant/Applicant. He averred that the 1st Defendant/Applicant’s directors were duly served with summons to enter appearance and they have always been aware of this suit. He added that the 1st Defendant/Applicant has always sought to create one excuse after another with a view to disobey this court’s orders. He averred that the 1st Defendant/Applicant’s director, namely Abdifatah Muhumed Abdi, received summons and court documents but declined to enter appearance and his continued disobedience of court orders prompted the Plaintiff/Respondent to file an application for him to be committed to civil jail. He further averred that he instructed his Advocates to seek leave to serve court documents by way of advertisement and that the same was advertised on 21st November 2012 which notice ordered the Defendant/Applicant to enter appearance. He added that the 1st Defendant/Applicant only entered appearance when it was served with the Notice for hearing of formal proof. He further averred that the 1st Defendant/Applicant’s advocates wrote a letter dated 18th June 2013 indicating that summons to enter appearance had been furnished on their clients in respect of this matter. A copy of that letter was annexed. He averred further that having failed to enter appearance and failing to file a defence within time, the 1st Defendant/Applicant only has itself to blame as the situation left the Honourable Court with the option of entering judgment and setting the matter down for hearing.

The issue that I am called upon to determine is whether or not to strike out this suit on the ground that a summons to enter appearance was never issued and served upon the Defendant/Applicant. Order 5 rule 1 of the Civil Procedure Rules, 2010 provides thus:- Where a suit has been filed a summons shall issue to the Defendant ordering him to appear within the time specified therein. Order 5 rule 1(3) provides that:- Every summons shall be accompanied by a copy of the plaint. Order 5 Rule 1 (5) provides:- Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with sub rule (2) of this rule. Order 5 Rule 1(6)provides:- Every summons except where the court is to effect service shall be collected for service within thirty days of issue or notification, whichever is later failing which the suit shall abate.

Pursuant to the above legal provisions, it is clear and evident that an obligation is placed on the Plaintiff/Respondent to ensure the summons are prepared and signed by the court and thereafter to effect service of the summons on the Defendant/Applicant. The record of the court in the present case shows that the summons to enter appearance was prepared and issued to the Plaintiff. The claim by the 1st Defendant/Applicant that it was not served with the summons to enter appearance appears to go contrary to the admission In the letter dated 18th June 2013 by their Advocates, M/s S. Musalia Mwenesi, that indeed summons to enter appearance was served upon them. In fact, it is also factual that the 1st Defendant/Applicant proceeded to enter appearance after being served with the Notice of the Hearing of formal proof. Clearly, this goes to show that they were indeed served with the summons to enter appearance. In the circumstances, I find that the 1st Defendant/Applicant was served with summons to enter appearance and failed to enter appearance and file their statement of defence within the timelines allowed.

Accordingly, this Application is hereby dismissed with costs to the Plaintiff.

It is so ordered.

DELIVERED AND DATED IN NAIROBI THIS 18TH

DAY OF MARCH 2016.

MARY M. GITUMBI

JUDGE