[2008] KEHC 3262 (KLR)
The court declined to grant the orders sought by the plaintiff because it was not satisfied that proper service of summons had been effected on the defendant. The evidence showed that the summons were served on Mrs. Jane Sang, who refused to sign, and the court found this mode of service unsatisfactory. Without...
Source-derived case information.
- Citation
- [2008] KEHC 3262 (KLR)
- Parties
- Plaintiff: Samuel Kimutai Kongkong; Defendant: Samuel Arap Sang
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 91 of 2007
- Procedural Posture
- Civil Case / Ruling on Formal Proof After Default Judgment
- Outcome
- Plaintiff's application for eviction and removal of structures declined due to improper service of summons.
- Judges
- FI Koome
- Legal Topics
- Land Ownership, Eviction, Trespass, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kimutai Kongkong
Plaintiff
Samuel Arap Sang
Defendant
Procedural Posture
Civil Case / Ruling on Formal Proof After Default Judgment
Legal Issues
- 1 Whether the plaintiff effected proper service of summons upon the defendant.
- 2 Whether the plaintiff is entitled to orders of eviction and removal of structures from the suit land.
Ratio Decidendi
The court declined to grant the orders sought by the plaintiff because it was not satisfied that proper service of summons had been effected on the defendant. The evidence showed that the summons were served on Mrs. Jane Sang, who refused to sign, and the court found this mode of service unsatisfactory. Without proper service, the court could not proceed to grant eviction or removal orders, regardless of the plaintiff's documentary evidence of ownership and the defendant's alleged trespass. The court ordered that summons be served properly before the matter could proceed further.
Court Disposition
Plaintiff's application for eviction and removal of structures declined due to improper service of summons.
Orders
- Summons to be served properly on the defendant.
- Original documents produced by the plaintiff are returned to him.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 91 of 2007
SAMUEL KIMUTAI KONGKONG……………...……………….PLAINTIFF
VERSUS
SAMUEL ARAP SANG………………………………………DEFENDANT
RULING
The plaintiff Samuel Kimutai Kongkong filed this suit on 9th of May 2007 against the defendant. There was default judgment entered in favour of the plaintiff and the matter proceeded on formal proof. The plaintiff gave evidence in support of his claim over property known as Kericho/Londiani Kendowa/Block 3 Chebowor /213 measuring 0. 97 hectares. The plaintiff produced the original title to the suit premises which was registered on the 6th December 2006. He also produced a search certificate issued by the District Land Registrar on 29th October 2007 to show that the title over the suit premises belongs to the plaintiff.
It was the plaintiff’s case that the defendant entered into his land sometimes towards the end of 2006 and elected structures and started cultivating the suit land thereby denying the plaintiff quiet and peaceful enjoyment of his land. The plaintiff also produced a photograph to show the extent of which the defendant had invaded his land and put up structures. The plaintiff therefore sought for orders of eviction against the defendant his servants or workers and the removal of all the buildings and structures from the plaintiff’s parcel of land.
Upon careful consideration of this matter especially the photographs produced to show the extent of the trespass it is clear that the structures are old house, over grown trees and fences which were definitely not elected towards the end of 2006. I have also examined the affidavit of service to satisfy myself that the summons was properly served and I find the mode of service unsatisfactory. The summons were served upon Mrs. Jane Sang who declined to sign while giving reasons that there is another suit filed against the plaintiff at Kericho High Court. For these reasons I am not satisfied that the plaintiff properly effected the service of summonses. I decline to grant the orders and order summons be served properly. The original documents produced by the plaintiff especially the title are returned to him. There will be order as to costs.
Ruling read and signed this 25th day of January 2008
M. KOOME
JUDGE
25/1/2008
Before Koome J.
Mwiti – Court clerk
Karanja for the plaintiff
N/A by defendant
Court: Ruling read and signed on 25/1/2008
M. KOOME
JUDGE