[2021] KEELC 551 (KLR)
The court found that there was no proper service of summons upon the 2nd Defendant/Applicant. The process server's affidavit indicated that service was effected through the Assistant Chief after a phone call, but the Applicant denied knowledge of the suit until he received the decree via WhatsApp. The court noted...
Source-derived case information.
- Citation
- [2021] KEELC 551 (KLR)
- Parties
- Plaintiff: Salome Gathoni Muirui; Defendant: Kamae Re-Settlement Project; Defendant: Ezekiel Ruheni Maina
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 673 of 2017
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Ex Parte Judgment and for Leave to Defend
- Outcome
- application allowed; ex-parte judgment and consequential orders set aside; leave to defend granted
- Judges
- EO Obaga
- Legal Topics
- Service of Summons, Setting Aside Ex Parte Judgment, Leave to Defend, Proper Service, Occupancy of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Gathoni Muirui
Plaintiff
Kamae Re-Settlement Project
Defendant
Ezekiel Ruheni Maina
Defendant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Ex Parte Judgment and for Leave to Defend
Legal Issues
- 1 Whether there was proper service of summons upon the 2nd Defendant/Applicant.
- 2 Whether the ex-parte judgment should be set aside for lack of proper service.
- 3 Whether the 2nd Defendant/Applicant should be granted leave to file a defence.
Ratio Decidendi
The court found that there was no proper service of summons upon the 2nd Defendant/Applicant. The process server's affidavit indicated that service was effected through the Assistant Chief after a phone call, but the Applicant denied knowledge of the suit until he received the decree via WhatsApp. The court noted inconsistencies in the mode of service and the lack of explanation for using different phone numbers. Given that the Applicant resided on the suit property, the process server should have made further attempts at personal service. In the absence of clear and satisfactory evidence of proper service, the court held that the ex-parte judgment and all consequential orders must be set...
Court Disposition
application allowed; ex-parte judgment and consequential orders set aside; leave to defend granted
Orders
- The ex-parte judgment delivered on 14th November 2019 and all consequential orders are set aside.
- The 2nd Defendant/Applicant is granted unconditional leave to file a defence within fourteen (14) days from the date of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC CASE NO. 673 OF 2017
SALOME GATHONI MUIRUI............................................PLAINTIFF
VERSUS
KAMAE RE-SETTLEMENT PROJECT................1ST DEFENDANT
EZEKIEL RUHENI MAINA...................................2ND DEFENDANT
RULING
1. The 2nd Defendant/Applicant filed a notice of motion dated 10th May 2021 in which he sought stay of execution of the judgement delivered by this court on 4th November 2019 and setting aside of the same together with any consequential orders. The Applicant also seeks leave of the court to file his defence.
2. The Applicant contends that he was not served with summons to enter appearance. He only came to know about the case when he was served with a copy of decree through WhatsApp on his phone No. 115xxxxxx on 29th April 2021.
3. The Plaintiff/Respondent opposed the Applicant’s application based on a replying affidavit sworn on 18th May 2021. The Respondent contends that the Applicant was duly served but he ignored to file a defence.
4. The parties were directed to file written submissions. The Applicant filed his submissions dated 29th June 2021. The Respondent filed her submissions on 5th August 2021. I have considered the Applicant’s application as well as the opposition to the same by the Respondent. I have also considered the submissions by the parties. The only issue for determination is whether there was service of summons upon the Applicant.
5. I have looked at the affidavit of service by the process server. The process server alleges to have served summons upon the Applicant through Assistant Chief Douglas Kimani. This is after the process server called the Applicant through his phone No. 0722xxxxxx . The Applicant then instructed the process server to leave the summons with the Assistant Chief.
6. In his application, the Applicant contends that he only became aware of the suit when he was served with a copy of decree through Whats App on his mobile No. 115xxxxx. This was not contested. The Respondent does not say why this time; service was made using a different phone. We all know that one can have more than two phone numbers but there are doubts whether the Applicant was served.
7. The Applicant is said to be occupying the suit property where he lives. There was nothing which would have prevented the process server from making other attempts to serve the Applicant personally before he could leave the summons with the Assistant Chief.
8. In the circumstances, I find that there was no proper service. I allow the Applicant’s application with the result that the ex-parte judgement delivered on 14th November 2019 together with all consequential orders are set aside. The Applicant is given unconditional leave to file defence within fourteen (14) days from today. The Applicant shall have costs of this application.
It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 28TH DAY OF OCTOBER 2021
E.O.OBAGA
JUDGE
In the Virtual Presence of :-
Mr Munene for Plaintiff/Respondent
Mr Kuria for Applicant
Court Assistant: Mercy
E.O. OBAGA
JUDGE