[2019] KEELC 2837 (KLR)
The court found that the affidavit of service did not provide sufficient detail regarding the location of the Plaintiff’s advocates or the identity of the person served. The absence of the law firm’s official stamp and lack of specific information rendered the purported service defective. As a result, the Plaintiff...
Source-derived case information.
- Citation
- [2019] KEELC 2837 (KLR)
- Parties
- Plaintiff: Joseph Kang’ethe Kilonzo; Defendant: Machakos District Adjudication and Settlement Officer; Defendant: Hon. Attorney General; Defendant: John King’oo Muli; Defendant: Gideon Ndeto Muli; Defendant: Kitonyi Muli; Defendant: Robert Ndima Muli
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 58 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Plaintiff’s application to set aside the dismissal and reinstate the suit is allowed. No order as to costs.
- Judges
- OA Angote
- Legal Topics
- Service of Process, Reinstatement of Suit, Dismissal for Want of Prosecution, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kang’ethe Kilonzo
Plaintiff
Machakos District Adjudication and Settlement Officer
Defendant
Hon. Attorney General
Defendant
John King’oo Muli
Defendant
Gideon Ndeto Muli
Defendant
Kitonyi Muli
Defendant
Robert Ndima Muli
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the Plaintiff and his advocate were properly served with the hearing notice for 1st March, 2018.
- 2 Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated.
Ratio Decidendi
The court found that the affidavit of service did not provide sufficient detail regarding the location of the Plaintiff’s advocates or the identity of the person served. The absence of the law firm’s official stamp and lack of specific information rendered the purported service defective. As a result, the Plaintiff and his advocate were not properly served with the hearing notice. Consequently, the dismissal of the suit for want of prosecution was not justified, and the Plaintiff’s application to set aside the dismissal and reinstate the suit was allowed.
Court Disposition
Plaintiff’s application to set aside the dismissal and reinstate the suit is allowed. No order as to costs.
Orders
- The orders made on 1st March, 2018 dismissing the suit are set aside.
- The Plaintiff’s suit is reinstated.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 58 OF 2013
JOSEPH KANG’ETHE KILONZO.................................PLAINTIFF
VERSUS
MACHAKOS DISTRICT ADJUDICATION AND
SETTLEMENT OFFICER.....................................1ST DEFENDANT
HON. ATTORNEY GENERAL...........................2ND DEFENDANT
JOHN KING’OO MULI.......................................3RD DEFENDANT
GIDEON NDETO MULI......................................4TH DEFENDANT
KITONYI MULI...................................................5TH DEFENDANT
ROBERT NDIMA MULI....................................6TH DEFENDANT
RULING
1. In the Notice of Motion dated 28th March, 2018, the Plaintiff is seeking for the following orders:
a. That Honourable Court be pleased to set aside the orders made on 1st March, 2018 and reinstate the Plaintiff/Applicant’s suit.
b. That costs of the Application be in cause.
2. The Application is based on the grounds that the Plaintiff was not served with a Hearing Notice; that the Plaintiff was not aware that there was a Land Court in Machakos and that the dispute herein involves a land matter which is an emotive issue.
3. The 3rd Defendant filed an undated and uncommissioned “Replying Affidavit”. Having not commissioned the Replying Affidavit, I find that the said “Affidavit” is a nullity and is hereby struck out.
4. This suit was commenced by way of a Plaint dated 12th August, 2013. The Plaint was drawn and filed by the firm of J.M. Muinde & Company Advocates. After the Summons to Enter Appearance were served on all the Defendants, the 1st and 2nd Defendants, through the Attorney General, filed their Witness Statements and Documents on 17th October, 2017. The 3rd, 4th and 6th Defendants filed their joint Defence in person on 23rd November, 2018.
5. The record shows that the 4th Defendant fixed the suit for hearing on 1st March, 2018. On the said date, it is only the 4th and 5th Defendants who were in court. The 4th Defendant informed the court that after fixing the matter for hearing, he caused the Plaintiff’s advocate to be served with a hearing notice. However, due to the absence of the Plaintiff and his advocate in court, the court dismissed the matter for want of prosecution. The Plaintiff has argued that neither himself nor his advocate were served with a hearing notice of 1st March, 2018.
6. I have perused the record and noted that the Attorney General, whose official stamp appears on the face of the hearing notice, was served with the hearing notice of 1st March, 2018. Dickson Wambua, a process-server, prepared an Affidavit which was filed in this court on 23rd February, 2018. In the said Affidavit of Service, the process-server deponed that he served the firm of J.M. Muinde with a hearing notice of 1st March, 2018 and dated 21st February, 2018. The said hearing notice is said to have been served on the firm of J.M. Muinde Advocates, Machakos on 21st February, 2018, who refused to acknowledge service.
7. The copy of the hearing notice annexed on the process-server’s Affidavit does not have the official stamp of the law firm of J.M. Muinde Advocates. In his Affidavit, the process-server does not indicate the physical address of the law firm of J.M. Muinde and the person who received the copy of the hearing notice.
8. To the extent that the Affidavit does not describe in detail where the firm of J.M. Muinde is situated, and the person who was served with the hearing notice, I find that the purported service of the hearing notice on the law firm of J.M. Muinde was not done properly, or at all.
9. For those reasons, I allow the Plaintiff’s Application dated 28th March, 2018 but with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 21ST DAY OF JUNE, 2019.
O.A. ANGOTE
JUDGE