[2025] KEHC 5429 (KLR)
The court found that the affidavit of service filed by the 2nd Respondent/Applicant was irregular and insufficient as it lacked the attached image of the Whatsapp page, which was necessary to prove electronic service. Furthermore, service was only effected upon the Auctioneer and not upon the Appellant as required...
Source-derived case information.
- Citation
- [2025] KEHC 5429 (KLR)
- Parties
- Appellant: Samuel Wainaina Ndungu; Respondent: Elias Mwaura Kamau; Respondent: Mutwiri M’ikiao
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 182 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application; Directions on Service and Submissions
- Outcome
- Service of the application was found to be improper; fresh directions issued for proper service and further conduct of the application.
- Judges
- DO Chepkwony
- Legal Topics
- Service of Process, Affidavit of Service, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Wainaina Ndungu
Appellant
Elias Mwaura Kamau
Respondent
Mutwiri M’ikiao
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application; Directions on Service and Submissions
Legal Issues
- 1 Whether service of the application dated 14th March, 2025 was properly effected upon all necessary parties.
- 2 Whether the affidavit of service filed provided sufficient proof of service as required by law.
Ratio Decidendi
The court found that the affidavit of service filed by the 2nd Respondent/Applicant was irregular and insufficient as it lacked the attached image of the Whatsapp page, which was necessary to prove electronic service. Furthermore, service was only effected upon the Auctioneer and not upon the Appellant as required by the court's directions. As a result, the court held that service was improper and issued fresh directions for proper service to be effected upon both the Appellant and the 1st Respondent, with timelines for responses and submissions clearly stipulated.
Court Disposition
Service of the application was found to be improper; fresh directions issued for proper service and further conduct of the application.
Orders
- The 2nd Respondent to serve the Appellant and the 1st Respondent with the application dated 14th March, 2025 within 7 days.
- The Respondents to file their respective responses within 7 days of being served.
Full Case Text
Judgment text and source record
21 paragraphs
Ndungu v Kamau & another (Civil Appeal 182 of 2019) [2025] KEHC 5429 (KLR) (24 April 2025) (Ruling)
Neutral citation: [2025] KEHC 5429 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal 182 of 2019
DO Chepkwony, J
April 24, 2025
Between
Samuel Wainaina Ndungu
Appellant
and
Elias Mwaura Kamau
1st Respondent
Mutwiri M’ikiao
2nd Respondent
Ruling
1. Mutwiri M’ikiao, the 2nd Respondent/Applicant herein filed a Notice of Motion application dated 14th March, 2025 under Certificate of Urgency seeking various orders and on 19th March, 2025, the Court issued Directions that the application be served upon the other parties for them to file their respective responses and thereafter parties to exchange written submissions within prescribed timelines. The matter was then fixed for mention before this court on 23rd April, 2025. On this day of 23rd April, 2025, Counsel for the 2nd Respondent/Applicant informed the court that they had served the application and orders upon the Appellant and the Auctioneers Return of Service to confirm this had been duly filed but no response had been filed. He then sought for further directions on that application.
2. This court has gone through the Case Tracking System and notes that indeed an Affidavit of Service sworn by Geoffrey Kimotho on 22nd April, 2025 had been filed to confirm that he had served the Auctioneer through Whatsapp vide Cellphone Number 0743xxxx17. It is also indicated therein that he had attached an image of the Whatsapp page to confirm service upon the said party.
3. However, upon observing the Affidavit of Service, the court notes that the same is irregular in that the alleged image of Whatsapp has not been attached thereon to provide proof of service. Further, it is noted that the said service was effected upon the Auctioneer only. Having filed the application, the 2nd Respondent ought to have been served the same upon the Appellant too as directed by the court since he is also a party in this appeal.
4. For these reasons, the court finds that the service was improper and proceeds to issue fresh directions as follows:-a.That the 2nd Defendant to hereby serve the Appellant and the 1st Respondent with the application dated 14th March, 2025 within 7 days.b.The Respondents to file their respective responses if need be, within 7 days of being served with the said application.c.The application to be canvassed by way of written submissions.d.The parties to file and exchange their written submissions within fourteen (14) days of each other with the 2nd Respondent going first. The 2nd Respondent be at liberty to file and serve a further affidavit alongside his written submissions if need be.e.Matter to be fixed for Mention on 2nd June, 2025 for purposes of confirming compliance and for further Directions.It is so ordered.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 24TH DAY OF APRIL, 2025. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Rereu holding brief for Mrs. Wang’ombe counsel for AppellantCourt Assistant - Martin