[2019] KEELC 3370 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELCA CASE NO. 3 OF 2018

MUSA LICHUNGU ..................................................................APPELLANT

VERSUS

MAMUSABU ARAP SITIENEI............................................RESPONDENT

JUDGEMENT

The appellant, Musa Lichungu above named being dissatisfied with the order/ruling made in Kakamega CMCC No. 140 of 1990 hereby appeals against the whole decision based on the grounds set forth as follows:-

1. The trial magistrate erred in law by failing to properly exercise his unfethered jurisdiction to set aside the ex-parte judgment entered against the appellant/defendant when he dismissed the appellant/defendant’s motion dated 22nd June, 2000.

2. The trial magistrate erred in law by wrongly exercising his jurisdiction by his failure to properly investigate the claims by the respondent that she had duly served the respondent in the face of denials by the appellant and insufficient proof in the alleged affidavit of service in respect of summons purportedly served upon the appellant.

3. The trial magistrate erred in law by failing to observe principles of natural justice and conducting the procedures in blatant violation of the principles of natural justice and the constitution.

4. The trial magistrate erred in law by failing to take into account that the subject matter of the suit was land and involved a substantial issue of fact and law namely deprivation of right to property to both sides and that as such the issue should have been resolved on merits and not technicalities.

The appellant prays that this appeal be allowed with costs and the decision of the lower court dismissing the appellant’s aforesaid application be varied, reviewed, quashed and or set aside with costs of the court be to the appellant. The appellant submitted that, the trial magistrate in his ruling delivered on the 10th August 2001 erroneously concluded that the appellant’s application must fail because the grounds relied on to set aside the exparte judgement have no substance and appears to have over emphasized the issue of service of summons on 29th May 1991, the court ordered the appellant to be served with a copy of the plaint and summons and was given 15 days within which to enter appearance and file a defence as per the affidavit of service dated 28th August 1992 which was effected upon the appellant. However he failed to take into account that the court had ordered that the appellant be served for the hearing of the formal proof. On the 11th April 1996 the matter proceeded for hearing without any indication as to whether the appellant was served or not. He relied on the authority of James Kenyiita Nderitu & Another vs Marios Philotas Ahikas & Another (2016) eKLR and Mbogo & Another vs. Shah (1968) E.A. 93.

This court has considered the appeal and the submissions herein. I have perused the trial file records and the ruling to be set aside. The trial magistrate held that;

In the first place, I agree with Mr. Omukunda that the applicant was duly served with the summons to enter appearance and the plaint. The first such documentated service was on 9. 5.1990. he has appended his signature on the affidavit of service. If that is disputed I again agree with counsel for the respondent that the record shows that on 29. 5.1991, the court ordered that the applicant be served with a copy of the plaint and the summons afresh. He was given 15 days within which to enter appearance and file a defence. Once again there is an affidavit of service dated 28. 8.1992 showing that the applicant was served with summons and the plaint and he signed as the receipient. In the circumstances he must have been served afresh.”

The trial court further goes on to observe that;

“There is also an apparent delay in bringing about this application. Judgement having been delivered in 1996, it was unreasonable for the applicant to wait for 6 years before seeking to set aside.”

I concur with the ruling by the trial court. There was not only inordinate delay in filing the application but the appellant was also properly served infact twice and failed and/or ignored to respond. When a defendant is served twice and refuses to enter appearance then the court has no choice but to proceed exparte. The issue of whether or not he is to be served thereafter all depends with the discretion of the trial court. I find that the learned Principal Magistrate did not err in law or fact in his ruling.

In Mwanasokoni v Kenya Bus Service (1982 - 88) 1 KAR 870, it was held that this court is duty bound to revisit the evidence on record, evaluate it and reach its own decision in the matter. This court however, appreciates that an appellate court will not ordinarily interfere with the findings of fact of the trial court unless they were based on no evidence at all, or on misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. The court finds that the decision was judiciously arrived at and will not interfere with the same. The court finds no basis to interfere with the ruling as it was based on cogent evidence. This appeal is dismissed for lack of merit. The appellant is to meet the costs of the appeal.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 8TH DAY OF MAY 2019.

N.A. MATHEKA

JUDGE