[2007] KEHC 2717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 498 of 2004

MUTHITHI INVESTMENTS LIMITED………........…….. PLAINTIFF

VERSUS

ANDREW S. KYENDO..……………………...…….1ST DEFENDANT

AMINA MOHAMED.…………………………….…..2ND DEFENDANT

WILLIAM K. MWANGANGI.……………………….3RD DEFENDANT

ROSEMARY NYOKABI.…………………………....4TH DEFENDANT

JAMES BANGA………………………………..……5TH DEFENDANT

MESHACK O. AMBUKA……………………...……6TH DEFENDANT

BERNARD M. MUTTAHA………………………….7TH DEFENDANT

W. OKEYO MBATA………………………...………8TH DEFENDANT

J.M. KAGAI………………………………...………. 9TH DEFENDANT

JANE WANGECI..………………………...………10TH DEFENDANT

RAPHAEL K. THIMBA……………………………11TH DEFENDANT

MARY N. KAGO..…………………..……………..12TH DEFENDANT

DICK OUMA OCHIENG..………………….……..13TH DEFENDANT

DAVID AUMA ………………………..……………14TH DEFENDANT

PATRICK NDIRANGU..…………………...……..15TH DEFENDANT

SAID ALIA ABU .…………..……………………..16TH DEFENDANT

SAMUEL NGATIA.……………………...………..17TH DEFENDANT

JAMES NJOROGE..……………………………..18TH DEFENDANT

MARY NDUKU KIOKO…………………….…….19TH DEFENDANT

MAINA MUTAHI.………………………………….20TH DEFENDANT

JOHN MWAURA WAINAINA.……….……….…..21ST DEFENDANT

MUDIA MUCHEMI.……………………….………22ND DEFENDANT

NAMAN OGEMBO OGWENO………………… 23RD DEFENDANT

RULING

By chamber summons dated 18. 01. 06 stated to be brought under Order IXA rules 10 and 11 plus Order XXI rule 22 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, Cap.21, the 13th – 23rd defendants, inter alia, applied for:-

a) Stay of Decree obtained herein pending the hearing and determination of the chamber application on merit;

b) Setting aside the ex-parte Judgment entered herein and that the matter be heard on merit as against the 13th – 23rd defendants;

c) Deeming of the annexed draft Defence dated 18. 01. 06 as properly filed.

The grounds upon which the chamber summons application is based are:-

1. That the plaintiff herein obtained ex-partejudgment herein against the 13th – 23rd defendants.

2. That a decree and eviction order has been obtained by the plaintiff and may proceed to execute the same as against the 13th – 23rd defendants at any time from now.

3. That the 13th – 23rd defendants were not served with summons to enter appearance.

4. That the annexed draft defence raises triable issues and therefore it will be in the interest of justice that the judgment be set aside and the matter do proceed for trial on merit.

5. That the said defendants stand to suffer irreparable loss and damage unless the orders sought herein are granted.

6. That this honourable court has powers and discretion to grant the order sought for the ends of justice to be met.

The application is supported by the affidavit of Maina Mutahi, 20th defendant which he deponed to have sworn on 18. 01. 06 on the authority of the 13th – 23rd defendants.

The 13th – 23rd defendants/applicants were represented in their application by learned counsel, Mrs B.S. Otundo holding brief for Mr G.M. Masese while the plaintiff/respondent was represented by learned counsel, Mr C.N. Njenga.

The ex-parte Judgment whose execution is sought to be stayed was delivered by this court on 24. 11. 05 following a hearing on 18. 07. 05 whereat the plaintiff was represented by learned counsel, Mr K. Kariuki while there was no appearance for all the 23 defendants. The court record establishes that the defences of the 1st – 12th defendants were struck out by Mugo, J thereby leaving only the 13th – 23rd defendants as entitled to defend the suit. This court was informed that the 13th – 23rd defendants had not entered appearance despite service, leading to the ex-parte Judgment whose execution is now sought to be stayed and for the suit to be heard on merit as against the 13th – 23rd defendants on grounds that the 13th – 23rd defendants were in fact not served despite the assertion by plaintiff’s previous counsel, Mr K. Kariuki that the 13th – 23rd defendants had been served. Arising from the denial by Maina Mutahi (20th defendant) of service upon the 13th – 23rd defendants, this court expressed a wish to have plaintiff’s previous counsel, Mr K. Kariuki file affidavit response to the chamber summons dated 18. 01. 06, only to learn that the said Mr K. Kariuki had subsequently died in a road accident on 02. 06. 06. The court also learnt that the man, Mr Godfrey Gichuki who purported to have served the court process in question upon the 13th – 23rd defendants was alive and, upon so learning, the court directed that the said Godfrey Gichuki should file affidavit response to the chamber summons dated 18. 01. 06 on the issue of service upon the 13th – 23rd defendants/applicants. Following this court direction, Godfrey Gichuki filed a supplementary affidavit sworn by him on 25. 07. 06 relating to the issue of service on the 13th – 23rd defendants. He maintained by affidavit that he had served the 13th – 23rd defendants while the said defendants contended by affidavit that no service was effected on them. This court’s Ruling dated 20. 09. 06 records that on 19. 09. 06 when Mr D. Njogu appeared for the plaintiff/respondent while Mr N. Mbugua held brief for Mr G.M. Masese for the defendants/applicants, both counsel also expressed the view that since there was contradictory evidence on record on the issue of service or otherwise upon the 13th – 23rd defendants, the process server, Mr Godfrey Gichuki should be made to appear before court for cross-examination on his evidence of service. Mr Godfrey Gichuki subsequently appeared before this court on 27. 03. 07 and was cross-examined and re-examined regarding his disputed service upon the 13th – 23rd defendants. Thereafter the parties advocates filed written submissions on the said service.

I have given due consideration to the contradictory evidence on record regarding the purported service on the 13th – 23rd defendant/applicants plus the rival submissions on the said evidence.

The court record establishes that the plaint in this case was filed on 14. 05. 04. The principal evidence relating to the issue whether the 13th – 23rd defendants were served with the requisite court process or not in this case is contained in the following affidavits:-

a) A 10 – paragraph affidavit by Godfrey Gichuki describing himself as a process server sworn on 01. 09. 04 in which he deposed –

i. That on 20. 05. 04 at 11. 42 a.m. he effected service on John Mwaura Wainaina, 21st defendant at Nairobi – Othaya Matatu terminus Nyamira area, Narobi; that the service was inside a shop written Sirge Electronics; that he, Geoffrey Gichuki was then accompanied by one Muroki who was employed by the plaintiff company and that Mr Muroki identified the 21st defendant to him; and that the 21st defendant declined to sign for the service.

ii. That on the same 20. 05. 04 at 2. 10 p.m. Godfrey Gichuki served Mudia Muchemi, 22nd defendant at Umoja I Estate, Nairobi House No.F.85 near Chania Bar; that it is the same Muroki who also identified the 22nd defendant to him; and that the 22nd defendant declined to sign for the service.

b) A 21 – paragraph affidavit by the same Godfrey Gichuki also sworn on 01. 09. 04 in which he deposed that on 08. 06. 04 the plaintiff company detailed one of its employees, a Mr Wainaina to accompany him on the assignment of pointing out the defendants who had not been served with summons for the said Godfrey Gichuki to effect service on the same and that he effected service as follows:-

i. That on 08. 06. 04 at 9. 35 a.m. he, Godfrey Gichuki served Dick Ouma Ochieng, 13th defendant at Makuti 2000 Club near Pnnacle Point stage; that Wainaina identified the 13th defendant to him; and that the 13th defendant declined to sign for the service.

ii. That on the same date at 11. 45 a.m. he, Godfrey Gichuki served James Njoroge, 18th defendant at Kayole Pinnacle Point, Nairobi near the DC’s office; that Wainaina identified the 18th defendant to him; and that the 18th defendant declined to sign for the service.

iii. That on the same date at 12. 00 noon he, Godfrey Gichuki served David Auma, 14th defendant at Baraka site near Dandora Estate, Nairobi; that Wainaina identified the 14th defendant to him; and that the 14th defendant declined to sign for the service.

iv. That on the same date at 12. 40 p.m. he, Godfrey Gichuki served Naman Ogembo Ogweno, 23rd defendant at Nyama Villa in Kayole Estate, Nairobi; that Wainaina identified the 23rd defendant to him; and that the 23rd defendant declined to sign for the service.

v. That on the same date at 1. 10 p.m. he, Godfrey Gichuki served Samuel Ngatia, 17th defendant at City Cabanas restaurant, Nairobi; that Wainaina identified the 17th defendant to him; and that the 17th defendant declined to sign for the service.

vi. That on the same date at 1. 45 p.m. he. Godfrey Gichuki served Said Ali Abu, 16th defendant at a mini shopping complex in Imara Daima Estate, Nairobi; that Wainaina identified the 16th defendant to him; and that the 16th defendant declined to sign for the service.

vii. That on the same date at 1. 55 p.m. he, Godfrey Gichuki served Patrick Ndirangu, 15th defendant also at the mini shopping complex in Imara Daima Estate, Nairobi; that Wainaina identified the 15th defendant to him; and that the 15th defendant declined to sign for the service.

c) A supporting affidavit by Maina Mutahi sworn on 18. 01. 06 in support of the chamber summons dated 18. 01. 06 challenging the ex-parte Judgment delivered by this court on 24. 11. 05. Maina Mutahi is the 20th defendant; he deponed that he had the authority of the 13th – 23rd defendants to swear the supporting affidavit; that counsel for the 13th – 23rd defendants informed him and his colleagues that he had perused the court record of this case and learnt, inter alia, that the case had proceeded ex-parte against the 13th – 23rd defendants and that an ex-parte Judgment had been obtained against them. Maina Mutahi, 20th defendant proceeded to depone that he and his colleagues, constituting the 13th – 23rd defendants, were never served with any summons to enter appearance and file defence and that, therefore, they were not aware that this case had been filed against them. He added that he and his colleagues have been staying on the suit property for over 15 years, erected permanent structures and that they stand to suffer irreparable loss and damage unless the ex-parte Judgment is set aside so that they can defend themselves.

d) Supplementary affidavit by Godfrey Gichuki sworn on 25. 07. 06 in which he essentially reiterated that he had effected service on the 13th – 23rd defendants as previously deponed in his two affidavits sworn on 01. 09. 04. In his supplementary affidavit sworn on 25. 07. 06 he clarified with regard to service on the 19th defendant, Mary Nduku Kioko that she is one and the same person as the 12th defendant, Mary N. Kago and that when he attempted to serve her as 19th defendant, she reminded him that he had already served her with the same court process as 12th defendant and that there was no need to serve her again. Godfrey Gichuki also seems to have taken advantage of the opportunity he had been given to file affidavit response on the issue of service on the 13th – 23rd defendants and filled in a gap left by his two affidavits sworn on 01. 09. 04 with regard to service upon Maina Mutahi, 20th defendant on which those two affidavits had said nothing. Godfrey Gichuki deponed in his supplementary affidavit that he had served Maina Mutahi, 20th defendant 0n 20. 05. 04 at Snow – Light Academy in Kayole Phase I and that the 20th defendant had been identified to him by Muroki, who is the person he had said pointed out John Mwaura Wainaina (21st defendant) and Mudia Muchemi (22nd defendant) to him on 20. 05. 04. Godfrey Gichuki was made to appear before this court for cross-examination. He appeared on 27. 03. 07 and was duly cross-examined and re-examined on the issue of service upon the 13th – 23rd defendants. He maintained during his cross-examination that he had effected service on the 13th -23rd defendants as deponed in his three affidavits alluded to earlier. He told this court that he was duly licensed as a court process server when he served the 13th – 23rd defendants on 20. 05. 04 and 08. 06. 04; that such licence is renewed every two years; that when he sought renewal of his biennial licence he had to surrender the expiring or expired licence; that he still had the licence which expired in 2006 which he had not renewed but that he had left it in the office. It was his case that the typist in his office had omitted to type from his draft affidavit a paragraph covering service effected on 20. 05. 04 which included service upon Maina Mutahi, 20th defendant; and that he did not compare the typed 10 – paragraph affidavit sworn on 01. 90. 04 with his handwritten draft before destroying the draft. He acknowledged that his supplementary affidavit sworn on 25. 07. 06 was sworn and filed almost two years after his first two affidavits he was supplementing but maintained that his supplementary affidavit was not an afterthought. He acknowledged that he filed his supplementary affidavit after being informed by plaintiff’s counsel that he would be required to appear before court and give evidence on the issue of service upon the 13th – 23rd defendants; that he called for copies of his previous two affidavits, of 01. 09. 04, to prepare for cross-examination; and that in the course of the preparation he realised his affidavits of 01. 09. 04 had said nothing about service upon Maina Mutahi, 20th defendant, so he swore the supplementary affidavit on 25. 07. 06, inter alia, to seal the gap. He described the omission in his two affidavits of 01. 09. 04 as a typographical error; that this was not the first time for such typographical error to occur in his affidavits of service and that whenever such errors occurred, he would file supplementary affidavits to correct the errors. He contended that he had not lied.

The picture emerging of Godfrey Gichuki may be sketched as under. He conceded not having compared the typed copy of his 10 – paragraph affidavit sworn on 01. 09. 04 relating to his purported service of 20. 05. 04 with his handwritten draft affidavit on that service before destroying his said draft. The effect of such omission was to deprive himself and the court of any documentary proof that his purported draft affidavit had a paragraph covering service on Maina Mutahi, 20th defendant. Godfrey Gichuki’s omission to compare the typed affidavit with the draft affidavit on which the typed affidavit was based depicts lack of diligence on his part. Godfrey Gichuki conceded that omissions by his office typist like the one under discussion here were a common phenomenon in that office. That should have put him on notice of the need to compare typed copies of any documents with his drafts but he apparently never bothered about it and seems to have been content to make no comparisons, in the hope of correcting omissions by way of supplementary affidavits. Such casual approach to matters touching on litigation is worrying. Godfrey Gichuki also acknowledged during his cross-examination on 27. 03. 07 that he had not renewed his process server’s licence which had expired the previous year (2006). It is also not clear why Godfrey Gichuki’s two affidavits of service sworn on 01. 09. 04 relating to service he said he had effected on 20. 05. 04 and 08. 06. 04 should have been sworn and filed some 3 - 4 months after the event. No explanation was proferred for the delay. Those are yet other examples of his lack of seriousness about his work.

As against the flippancy displayed by Godfrey Gichuki as illustrated by his omissions cited about, it may be noted on the positive side that, apart from his purported service on Maina Mutahi (20th defendant) which he slotted into his supplementary affidavit sworn belatedly on 25. 07. 06, and without details of time of such service, after learning he would be taken to task on his purported service upon the 13th – 23rd defendants, his purported service on the other 10 defendants furnishes details of places and times of the said service. The question them arises whether the furnishing of details of places and times of the purported service by itself constitutes proof of such service? Ordinarily it would be a strong indicator of the likelihood of the purported service as having taken place. However, in the present case the various instances of laxity and omissions cited above on the part of Godfrey Gichuki tend to erode the impact of the details of places and times towards establishing that the service in question was actually effected. Arising from the foregoing, it is doubtful whether the court can confidently count on Godfrey Gichuki’s word that his reported service actually took place. Serious question marks and doubts linger around the issue of service. In the circumstances, I find it unsafe to answer affirmatively the question whether service was in fact effected upon the 13th – 23rd defendants and I give them the benefit of doubt.

The upshot is that I hold that service upon the 13th – 23rd defendants was not proved to the required standard, i.e. on a balance of probabilities. Accordingly, the chamber summons application dated 18. 01. 06 is allowed, the ex-parte Judgment entered in favour of the plaintiff on 24. 11. 05 set aside, the draft Defence dated 18. 01. 06 deemed as properly filed and that this matter should proceed to trial on merit as prayed, on priority basis. Costs shall be in the course.

Orders accordingly.

Delivered at Nairobi this 29th day of October, 2007.

B.P. KUBO

JUDGE