[2023] KEELC 18040 (KLR)

Nganga v Gitara & 23 others (Environment & Land Case 45A of 2019) [2023] KEELC 18040 (KLR) (19 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18040 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 45A of 2019

LA Omollo, J

June 19, 2023

Between

Charles Njihia Nganga

Plaintiff

and

Joseph Kimani Gitara/Peter Njonjo Gathoni

1st Defendant

Beth Wangari Kahuria

2nd Defendant

Njenga Muniu/Mama Peter

3rd Defendant

Hezekiah Njuguna Iraya

4th Defendant

Jecinta Waithira Kamau/Mr.Wairubi

5th Defendant

Emilly Nyambura Kairu/Mr Ng’Ang’A

6th Defendant

Joseph Luka Mbugua Kamama

7th Defendant

Macharia Hiram Mwangi

8th Defendant

Nganga Matu/John Gichuru Mwangi

9th Defendant

Sammy Njiri Gitogo

10th Defendant

Alice Mihioko Kimani

11th Defendant

Wilfred Nganga Kamau/Ms. Njeri

12th Defendant

Reuben Kariuki Wanjiru

13th Defendant

Gatuna Kungu

14th Defendant

John Ruiru Muchiri

15th Defendant

Tabitha Njeri Michore/Mr. Wairubi

16th Defendant

Andrew Gichuki Chege/Baba Njeri

17th Defendant

John Mwangi Kahungura/Mr. Kamau

18th Defendant

Kimani Ndirangu/Mr. Nganga

19th Defendant

David Kamwea Nganga/Mr. Wamwea

20th Defendant

Perpetuah Tuta Kamau

21st Defendant

David N. Karuru/ Mr. Isoe

22nd Defendant

Land Registrar Nakuru

23rd Defendant

Tayari Farmers Company Limited

24th Defendant

Ruling

Introduction 1. This ruling is in respect of the 24th Defendant/Applicant’s Notice of Motion application dated 31st October, 2022. The said application is expressed to be brought under Section 1A and 3A of the Civil Procedure Act, Order 37 Rule 6, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules.

2. The application is filed under Certificate of Urgency seeking the following orders;a.Spentb.That this honourable court be pleased to set aside the ex parte judgement entered in default of appearance and defence, and all consequential orders arising therefrom, restore the suit for hearing and final determination on merits and grant leave to the 24th Defendant to file and serve its Statement of defence out of time and or in the alternative the 24th defendant statement of defence filed on 12th July, 2022 and dated 20th May, 2022 be deemed as properly on record upon payment of the requisite filing fees.c.That the honourable court be pleased to grant leave to the applicant to file its statement of defence against the plaintiff/respondent’s suit out of time.d.That costs of this application be provided for.

3. The Application is based on the grounds on its face and supported by the affidavit of Milton Kamau Mbugua. The supporting affidavit is sworn on 31st October, 2022.

Factual Background. 4. The Plaintiff filed his Amended Plaint dated 21st April, 2021 seeking the following orders;a.An order declaring that all the undermentioned 26 plots are superimposed on my shamba no 623 as per the Olweny & Associates surveyors Map and are hereby cancelled;a.Mau Summit/ Molo, Block 7/1529b.Mau Summit/ Molo, Block 7/1530c.Mau Summit/ Molo, Block 7/1531d.Mau Summit/ Molo, Block 7/1532e.Mau Summit/ Molo, Block 7/1533f.Mau Summit/ Molo, Block 7/1534g.Mau Summit/ Molo, Block 7/1535h.Mau Summit/ Molo, Block 7/1536i.Mau Summit/ Molo, Block 7/1537j.Mau Summit/ Molo, Block 7/1538k.Mau Summit/ Molo, Block 7/1539l.Mau Summit/ Molo, Block 7/1540m.Mau Summit/ Molo, Block 7/1541n.Mau Summit/ Molo, Block 7/1542o.Mau Summit/ Molo, Block 7/1543p.Mau Summit/ Molo, Block 7/1544q.Mau Summit/ Molo, Block 7/1545r.Mau Summit/ Molo, Block 7/1546s.Mau Summit/ Molo, Block 7/1547t.Mau Summit/ Molo, Block 7/1548u.Mau Summit/ Molo, Block 7/1549v.Mau Summit/ Molo, Block 7/1550w.Mau Summit/ Molo, Block 7/1551x.Mau Summit/ Molo, Block 7/1552y.Mau Summit/ Molo, Block 7/1553z.Mau Summit/ Molo, Block 7/1554. b.An order declaring the Plaintiff as the rightful owner of Shamba no 623 measuring 1. 5 acres and plot no 153 measuring 50 * 100 feet as per the Olweny & Associates Map.c.An order cancelling the registration of the 10th – 22nd Defendant by the 23rd and 24th Defendants as the owners of; -I.Mau Summit/ Molo, Block 7/1529 (Tayari)- Sammy Njiri GitogoII.Mau Summit/ Molo, Block 7/1533 (Tayari)- Alice Mihioko KimaniIII.Mau Summit/ Molo, Block 7/1535 (Tayari)- Wilfred Nganga KamauIV.Mau Summit/ Molo, Block 7/1536 (Tayari)- Reuben Kariuki Wanjiru.V.Mau Summit/ Molo, Block 7/1537 (Tayari)- Gatuna KunguVI.Mau Summit/ Molo, Block 7/1538 (Tayari)- John Ruiru MuchiriVII.Mau Summit/ Molo, Block 7/1541 (Tayari)- Tabitha Njeri MichoreVIII.Mau Summit/ Molo, Block 7/1544 (Tayari)- Andrew Gichuki ChegeIX.Mau Summit/ Molo, Block 7/1547 (Tayari)- John Mwangi KahunguraX.Mau Summit/ Molo, Block 7/1549 (Tayari)- Kimani NdiranguXI.Mau Summit/ Molo, Block 7/1550 (Tayari)-David Kamwea NgangaXII.Mau Summit/ Molo, Block 7/1551 (Tayari)- Perpetuah Tuta KamauXIII.Mau Summit/ Molo, Block 7/1554 (Tayari)- David N. Karurud.An order cancelling Title No’s;-a.Mau Summit/Molo Block 7/1530 (Tayari) – Sammy Njiri Gitogob.Mau Summit/Molo Block 7/1531 (Tayari) – Joseph Kimani Gitarac.Mau Summit/Molo Block 7/1532 (Tayari) – Beth Wangari Kahuriad.Mau Summit/Molo Block 7/1534 (Tayari) – Njenga Muniue.Mau Summit/Molo Block 7/1539 (Tayari)– Hezekiah Njuguna Iraya.f.Mau Summit/Molo Block 7/1540 (Tayari)–Jecinta Waithira Kamau.g.Mau Summit/Molo Block 7/1543 (Tayari) – Emilly Nyambura Kairuh.Mau Summit/Molo Block 7/1545 (Tayari)–Joseph Luka Mbugua Kamamai.Mau Summit/Molo Block 7/1548 (Tayari)– Joseph Luka Mbugua Kamamaj.Mau Summit/Molo Block 7/1552 (Tayari) – Macharia Hiram Mwangik.Mau Summit/Molo Block 7/1553 (Tayari)–Nganga Matu/John Gichuru Mwangie.An order for eviction of the defendants or their agents or servants from the suit property and removal of their structures.f.A permanent injunction restraining the defendants from selling, alienating or in any other manner interfering with the plaintiff’s peaceful possession, occupation, ownership and enjoyment of his Plot no 623. g.Compensation for the non-use of the shamba from January 2018 up to the time of determination of this suit at a rate of ksh 100,000 per yearh.Costs and interests.

5. The 2nd Defendant filed his statement of defence on 12th July, 2022 and denies the averments of the amended plaint and seeks that the suit be dismissed with costs to him.

6. The other Defendants filed a joint statement of defence on 12th May, 2022 wherein they deny the averments in the plaint and state that they lawfully acquired the suit property and seek that the Plaintiff’s case be dismissed with costs.

7. The application under consideration first came up for hearing on 9th November, 2022 when the court directed that it be served upon the other parties.

8. The 23rd Defendant stated that they would not be opposing the Application.

9. The 1st- 22nd Defendant have not filed a response to the Application.

10. On 7th December, 2022 the Court directed that the application be heard by way of written submissions and on 2nd February, 2023 the matter was reserved for ruling.

The 24Th Defendant/Applicant’s Contention. 11. The 24th Defendant/Applicant through its chairman Milton Kamau Mbugua contends that it has never been served with summons to enter appearance and only became aware of the present matter upon being informed by one John Mwangi.

12. It is its contention that the Plaintiff/Respondent, the 1st to 23rd Defendants/Respondents cases have been closed without its input and it is apprehensive that judgement maybe delivered without its evidence.

13. It also contends that the Plaintiff/Respondent’s interlocutory judgment that is in place is irregular for lack of service of summons or any other pleadings in the present matter.

14. the 24th Defendant/Applicant contends that it has a defence with triable issues and prays that it be allowed to ventilate its case.

15. the 24th Defendant/Applicant further contends that it has come to court with clean hands and has a genuine reason for failure to put in a defence on time.

16. It is its contention that it is in the interest of justice that it be given a chance to defend its case.

17. The 24th Defendant/Applicant ends its deposition by stating that it does not intend to cross examine the Plaintiff/Respondent and the other Defendants/Respondents but seeks leave to ventilate its case through oral evidence and to allow the other parties to cross examine it on any issues they may deem fit.

The Plaintiff/Respondent’s Response. 18. In response to the application, the Plaintiff/Respondent filed a Replying Affidavit sworn on 21st November, 2022 and filed on 22nd November, 2022.

19. The Plaintiff/Respondent admits that the suit has always proceeded without the input of the 24th Defendant/Applicant.

20. It is his contention that the 24th Defendant/Applicant was served eight times through its chairman.

21. It is also his contention that the 24th Defendant/Applicant was served with both the original and amended plaints as per the affidavit of one Manuel Sakayo Market dated 19th May, 2021.

22. It is further his contention that the 24th Defendant/Applicant was served with a mention notice as per the affidavit of one Nyaramba Mariera dated 22nd October, 2021.

23. It is his contention that the 24th Defendant/Applicant was also served with hearing notices as per the affidavits of one Mary Ngugi dated 5th November, 2021, 25th November, 2021, 10th January, 2022 and 25th March, 2022.

24. The Plaintiff/Respondent contends that the 24th Defendant/Applicant was served with a mention notice as per the affidavit of one Nyaramba Mariera dated 4th May, 2022.

25. The Plaintiff/Respondent also contends that the 24th Defendant/Applicant was served with a hearing notice as per the affidavit of one Nyaramba Mariera dated 20th May, 2022.

26. The Plaintiff/Respondent further contends that he opposes ground 3 of the application as it is clear from the affidavits that the failure to enter appearance and file statement of defence by the 24th Defendant/Applicant was intentional and as explained in the affidavits, the chairman Milton Kamau refused to acknowledge receipt of most of the documents.

27. The Plaintiff/Respondent ends his deposition by stating that he opposes ground 4 of the application that states that the 24th Respondent/Applicant has come to court with unclean hands.

Issues for Determination. 28. The 24th Defendant/Applicant filed his submissions on 30th January, 2023 while the Plaintiff/Respondent did not file any submissions.

29. The 24th Defendant/Applicant identified the following issues for determination;a.Whether there was proper service of summons to enter appearance upon the applicant.b.Whether the applicant’s prayer for setting aside the exparte judgement is merited.c.Whether the applicant should be granted leave to defend the suit.

30. On the first issue, the 24th Defendant/Applicant submits that the affidavits of service relied upon by the Plaintiff/Respondent do not indicate the time the service was effected.

31. The 24th Defendant/Applicant relies on Order 5 Rule 15 of the Civil Procedure Rules and submits that the affidavits of service have inconsistencies and so they fail to meet the requirements of the law.

32. The 24th Defendant/Applicant relies on the judicial decision in Delphis Bank Limited v Wheatland Motors & 2 Others [2015] and submits that the process servers alleged to have served it did not comply with the requirements of the law.

33. The 24th Defendant/Applicant also relies on the judicial decision in Kenga Mwaduna Mwambira & another v National Bank of Kenya Limited [2006] eKLR, Kenya Orient Insurance Limited v Cargo Stars Limited and 2 Others [2017] eKLR in support of its arguments.

34. On the second issue, the 24th Defendant/Applicant relies on Order 10 Rule 11 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and submits that it has given a sufficient reason why it did not enter appearance and seeks that the court exercises its discretion in its favour.

35. The 24th Defendant/applicant cites the decisions in CMC Holdings Limited v James Mumo Nzioka [2004] eKLR and Transafrica Assurance Co. Ltd v Lincoln Mujuni (no citation given) in support of its arguments.

36. On the third issue, the 24th Defendant/Applicant submits that its draft defence annexed to its application raises triable issues and it is therefore in the interest of justice that its application be allowed as prayed.

37. The 24th Defendant/Applicant relies on the case of Multiscope Consulting Engineers v University of Nairobi & another [2014] eKLR in support of this argument.

Analysis and Determination. 38. After considering the application, replying affidavit and submissions, the issues that arise for determination are as follows;a.Whether the court should set aside the ex-parte judgment entered in default of appearance and filing of statement of defence.b.Whether the 24th Defendant/Applicant should be granted leave to file its statement of defence out of time.c.Who should bear the costs of the application?

A. Whether the court should set aside the ex-parte judgment entered in default of appearance and filing of statement of defence. 39. The 24th Defendant/Applicant is seeking orders that the court sets aside the ex parte judgement entered in default of entering appearance and filing its Statement of Defence. This is on the grounds that it has never been served with the pleadings in this matter and was not aware of the existence of this suit.

40. The Plaintiff/Respondent is opposing the said application and states that the 24th Defendant/Applicant has always been served with the pleadings in this matter and was aware of the present proceedings.

41. A perusal of the court record shows that no ex-parte judgement in default of appearance was entered against the 24th Defendant/Applicant and therefore, there are no orders to set aside.

B. Whether the 24th Defendant/Applicant should be granted leave to file its statement of Defence out of time. 42. The Plaintiff/Respondent amended his plaint on 21st April, 2021 to include the 24th Defendant/Applicant.

43. The 24th Defendant/Applicant contends that it has never been served with the pleadings in this matter and that is why it did not file its Statement of Defence within time. The Plaintiff/Respondent, on the other hand, alleges that it has always ensured service upon the 24th Defendant/Applicant.

44. The Plaintiff/Respondent has in response to the 24th Defendant/Applicant’s application annexed various copies of affidavits of service intended to demonstrate that process servers have been trying to serve the chairman of the 24th Defendant/Applicant at his home but he has always declined to accept service.

45. The 24th Defendant/Respondent argues that the said affidavits of service are not in compliance with the provisions of the law as they lack necessary details.

46. A perusal of the court record confirms that there are affidavits of services that show that there were attempts to serve the 24th Defendant/Applicant’s chairman with various hearing and mention notices. This demonstrates that the 24th Defendant/Applicant has always been aware of the pleadings and proceedings in this matter.

47. The 24th Defendant/Applicant entered appearance on 20th May, 2022 and also filed its Statement of Defence on the same date.

48. My view is that the 24th Defendant/Applicant is an important party to this suit whose presence and evidence will help the court in determining the dispute. This is because both the Plaintiff/Respondent and the 1st to 23rd Defendants/Respondents claim to have been allocated the suit parcels by the 24th Defendant/Applicant.Importantly, there is nothing to suggest that the Respondents would suffer any prejudice if this application were to be allowed.

49. However, I must state that it is highly regrettable that the 24th defendant is just now waking up from slumber and causing great inconvenience to this Court and other parties. This matter has proceeded substantially. The plaintiff and his 5 witnesses have testified and plaintiffs case closed. The case of the 23rd defendant has been heard partially and is coming up for further hearing. The 1st -22nd Defendant’s case is yet to be heard. I have also noted that counsel appearing for the 1st -22nd Defendants is also appearing for the 24th Defendant.

50. The 24th Defendant/Applicant acknowledges that this application is a set back on the progress made towards hearing and determination of this suit. It has expressly stated that it does not intend to cross-examine the Plaintiff/Respondent and the other Defendants/Respondents but seeks leave to ventilate its case through oral evidence and to allow the other parties to cross examine it on any issues they may deem fit.

Disposition. 51. In the result, the application dated 24/10/2022 is hereby allowed in the following terms:a.Leave is hereby granted to the 24th Defendant/applicant to file its statement of defence out of time.b.The 24th Defendant/Applicant’s Statement of Defence filed on 12th July, 2022 is hereby deemed as duly filed.c.The 24th Defendant/Applicant shall serve the Statement of Defence upon the Respondents within 7 days of the date hereof.d.The Respondents shall file their Reply to Defence within 14 days upon service.e.The hearing of the suit (defence hearing) shall proceed as earlier scheduled.f.The costs of this application shall abide the outcome of this suit.

52. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19TH DAY OF JUNE 2023. L. A. OMOLLOJUDGEIn the presence of: -Charles Njihia Nganga for the Plaintiff/Respondent.No appearance for the 1st -22nd Defendant/Respondent.No appearance for 23rd Defendant/Respondent.No appearance for the 24th Defendant/Applicant.Court Assistant; Ms. Monica Wanjohi.