[2016] KEELC 904 (KLR)
The court found that the Plaintiff failed to provide evidence that Mr. Masha Wanje, who was served with the application and summons, was a recognised agent of the 1st Defendant as defined by the Civil Procedure Rules. The process server's affidavit indicated that the 1st Defendant resided in Germany and that her...
Source-derived case information.
- Citation
- [2016] KEELC 904 (KLR)
- Parties
- Plaintiff: Nelson Ruto Korir; Defendant: Eugina Njoki; Defendant: Registrar of Titles
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 103 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application allowed; ex parte orders set aside
- Judges
- OA Angote
- Legal Topics
- Service of Process, Ex Parte Orders, Mandatory Injunctions, Recognised Agents, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Ruto Korir
Plaintiff
Eugina Njoki
Defendant
Registrar of Titles
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the service of the application and summons on the 1st Defendant through her property manager constituted proper service under the Civil Procedure Rules.
- 2 Whether the ex parte orders granted on 7th July, 2015 should be set aside due to irregular service.
Ratio Decidendi
The court found that the Plaintiff failed to provide evidence that Mr. Masha Wanje, who was served with the application and summons, was a recognised agent of the 1st Defendant as defined by the Civil Procedure Rules. The process server's affidavit indicated that the 1st Defendant resided in Germany and that her property was managed by Mr. Wanje and her sister. However, there was no proof that Mr. Wanje was authorised to accept service on behalf of the 1st Defendant under the relevant legal provisions. As a result, the service was irregular, and the ex parte orders granted on 7th July, 2015, which were based on such service, could not stand. The court therefore set aside the orders and...
Court Disposition
application allowed; ex parte orders set aside
Orders
- The Ruling and orders of this Court dated 7th July, 2015 are set aside.
- The Plaintiff to pay the costs of the Application dated 23rd July, 2015.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC NO. 103 OF 2015
NELSON RUTO KORIR...........................................................................PLAINTIFF
=VERSUS=
1. EUGINA NJOKI
2. REGISTRAR OF TITLES...............................................................DEFENDANTS
R U L I N G
On 7th July, 2015, this court allowed the Plaintiff's Application dated 27th June, 2015 after being satisfied that service had been effected on the Defendants.
The 1st Defendant has now filed an Application dated 23rd July, 2015 in which she is seeking for the following orders:-
(a) THAT the Hon. Court be pleased to review/vary or set-aside the orders issued on the 7th July, 2015.
(b) THAT the Hon. Court do make such further or other orders as it deems appropriate in all circumstance.
(c) THAT cost of this application be provided for.
The Application is premised on the grounds that the court granted to the Plaintiff a mandatory injunction without hearing the 1st Defendant; that the 1st Defendant was not served with the Application and that the orders were obtained without sufficient material disclosure.
In the Affidavit, the Defendant's Attorney deponed that it is the Defendant who is the registered proprietor of the suit property.
According to the Affidavit of Mr. Abdillahi Kibwana Khamis, he is a beneficiary of the Estate of Kibwana bin Khamis (deceased); that after getting his share as a beneficiary of title number 34/III/MN which was subdivided, he sold subdivision number 2679 to the Defendant and that he later on realised that the same land had been acquired by the Plaintiff.
It is the deposition of Mr. Khamis that the Registrar rectified the irregularity by registering the Transfer and issued to the Defendant a title document.
In his Replying Affidavit, the Plaintiff deponed that the 1st Defendant was properly served with all the pleadings and that in any event, the 1st Defendant is residing abroad and the orders that were issued by the Court do not affect her.
In his submissions, counsel submitted that the 1st Defendant was not in the country and does not reside in the country at the time the suit was filed; that personal service would not have arisen in the circumstance and that the affidavit of service is defective.
The Plaintiff's advocate submitted that it was the 1st Defendant's property manager who was served; that it was the Defendant's Manager, Masha Wanje and her sister who were interfering with the suit property and that the issues raised by the 1st Defendant are technicalities.
The only issue that I am supposed to determine is whether I should set aside the order of this court of 7th July, 2015.
It is not in dispute that on 7th, July 2015, this court proceeded to hear the Plaintiff's Application dated 27th June, 2015 ex parte.
The said Application proceeded for hearing after the Plaintiff's Advocate informed the court that the Defendants had been served with the Application. It is imperative that the court re-visits the affidavit of service that was filed in this court on 7th July, 2015.
In his Affidavit, the process-server deponed that while tracing the Defendant, he discovered that the Defendant stays in German and that it is the Defendant's brother-in-law, Masha Wanje, together with the Defendant's sister, Farida Njoki Njau, who were managing the Defendant's property.
According to the process server, he served the Defendant with the Application and the Summons to Enter Appearance through her Manager, Mr. Masha Wanje.
Order 5 Rule 8(1) of the Civil Procedure Rules provides that where it is practicable, service shall be made on the Defendant in person, unless he has an agent empowered to accept service.
The process server has deponed that he served Mr. Masha with the Summons and the Application because he was the one Managing the Defendant's property in Kenya.
Order 9 Rule 2 of the Civil Procedure Rules has defined the recognised agents who may appear or act in court on behalf of a party as: persons holding powers of attorney authorising them to make such appearance; a person carrying on trade or business for and in the name of parties not residents within the local limits of the jurisdiction of the court in matters connected with such trade or business and for a corporation, an officer of the corporation duly authorized under the corporate seal.
Order 5 Rule 3 of the Civil Procedure Rules provides that process served on recognised agent of a party shall be as effectual as if the same had been served on the party in person.
The Plaintiff has not placed evidence before me to show that Mr. Masha Wanje fell in the category of recognised agent as defined by the law.
In the circumstances, the service of the Summons and the Application on Mr. Wanje was irregular and the orders that were granted by this court on the basis of the irregular service cannot stand.
In the circumstances, I allow the 1st Defendant's Application dated 23rd July, 2015 in the following terms:
(a) The Ruling and orders of this Court dated 7th July, 2015 be and are hereby set aside
(b) The Plaintiff to pay the costs of the Application dated 23rd July, 2015.
Dated, signed and delivered in Malindi this 13thday of May, 2016.
O. A. Angote
Judge