[2010] KEHC 2538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Civil Case 190 of 1992

1. NGARI MWANGI )

2. KIURA KAGWERU )....................................PLAINTIFFS

VERSUS

KAGWERU MWANGI.............................................................DEFENDANT

RULING

This ruling is the offshoot of the Chamber summons dated 22nd May 2008 taken out pursuant to Order IXB rule 8 order XXI rule 22 and order XVIII rule 21 of the Civil Procedure Rules. In the aforesaid summons the defendant Kagweru Mwangi, seeks for the following orders:-

1. An order to set aside judgment entered on 20/7/07.

2. A stay of execution of the said judgment pending the hearing of the application.

3. An order to summonIsaac Odera Ndalo and Margaret Mwai to be cross examined on their affidavit of 30th October 2005 and 12th May 2007 respectively.

The summons is supported by the affidavit of Kagweru Mwangi. Peter Muriuki Kabui and Ireri Kiura opposed the summons by each filing a Replying affidavit.

The facts leading to the filing of this application started on 7th July 1992 when Ngari Mwangi and Kiura Kagweru filed a plaint dated 7th July 1992 against Kagweru Mwangi claiming for judgment as follows;

(1) A declaration that the defendant holds title No.

Mbaragwe/Guama/528 as a trustee for the plaintiffs and the order determining their said trust.

(2)An order directing the defendants to transfer the

land to the plaintiffs.

Alternatively;-

1. An order of declaration that the plaintiffs have

acquired the aforesaid land by adverse possession.

2. An order directing the land to be subdivided and

the plaintiffs given their appropriate shares with their own title deeds.

3. An order requiring the defendant to sign the

necessary documents to effect transfer.

The defendants filed a defence dated 23rd August 1992 in which they denied the plaintiff’s claim. Kiura Kagweru, 1st plaintiff passed on before the suit was heard. On 15th November 2002 he was substituted by Fredrick Kagweru Kiura. On 7th October 2006 the firm of Arunga Opiyo Masese & CO advocates ceased to act for the defendant. On 31st May 2007 this suit proceeded for hearing exparte before Lady Justice Kasango and judgment delivered in favour of the plaintiff on 20th July 2007. That is the judgment the defendants are now seeking to upset. It is the submission of the defendants that they were not aware of the hearing date. They also claim that at the time of hearing they were not aware that the firm of Arunga Opiyo Masese & CO advocates had ceased acting for them hence the judgment should be set aside to allow them vindicate their case. The plaintiffs are of the view that the defendants had deliberately acted to delay the finalization of this case. It is said that they were served with the hearing notice and they failed to attend court and that the filing of this application is a further delaying tactic to frustrate the finalization of this case.

I have considered the grounds set out on the face of summons and the facts deponed on the affidavits filed for and against the application. I have further considered the oral submissions of the learned counsel who appeared for both sides. It is not in dispute that the suit proceeded for hearing in the absence of the defendants. The question is whether at the time of hearing the defendant had notice of the hearing date. The record shows that this suit was fixed for hearing on 31st May 2007. The date was taken exparte by the plaintiff on 18th October 2006. It is noted on record that the plaintiff was to issue a hearing notice upon the defendant. When the suit came up for hearing on 31st May 2007 the same proceeded to hearing in the absence of the defendant. There is no indication that the plaintiff’s advocate indicated to the court that the defendant had been served with the hearing notice. I am convinced that the applicant was served with hearing notice. I have perused the judgment of Lady Justice Kasango and it is clear that she made a finding on the issue of service of a hearing notice. On page 3 of the aforesaid judgment Lady Justice Kasango stated as follows;

“The defendant had been served with a hearing notice for the hearing of this case on 31st May 2007. He was served with that hearing notice on 10th May 2007. The defendant failed to attend court to defend this suit.”

It is obvious that the Hon. Lady Justice Kasango made a finding on the issue of service. I cannot overrule my colleague.

The Defendants’ remedy, if well advised, available to the applicant lies elsewhere. In sum the motion lacks merit. It is dismissed with costs to the respondent.

Dated and delivered at Nyeri this 23rd day of April 2010.

J.K. SERGON

JUDGE