[2016] KEHC 3132 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 184 OF 2013

1. VUE TAURE VUE

2. TSORI CHIWAI SUDI...............................................PLAINTIFFS

=VERSUS=

1. FELIX TSORI

2. DANCAN JAMES WAITA....................................DEFENDANTS

R U L I N G

1. The Applications before me are dated 7th December, 2015 and 2nd April 2016.

2. In the Application dated 7th December, 2015, the 2nd Defendant is seeking for the following orders:-

(a) This honourable court be pleased to set aside the Judgment entered against the Applicant on 18th September 2015.

(b) The 1st Defendant/Applicant be allowed to file his defence out of the prescribed time

(c) The costs of this application be provided for

(d) This honourable court do make such other interlocutory orders as it may deem just and expedient pending the hearing and determination of this Application.

(e) This matter be set for trial on merits by taking of evidence of all parties on priority.

3. In the Application dated 2nd April, 2016, the “Defendants” are seeking for the following reliefs:-

(a) THAT the Judgment herein dated 30th July, 2015 be set aside

(b) THAT pending the hearing and determination of this Application the Plaintiffs their agents, servants, or employees be restrained by way of a temporary injunction order from alienating, or dealing adversely with the property originally known as Plot NO. Kilifi/Vyumbani/92 also subdivided into 5 plots namely Kilifi/Vyumbani 353, 354, 355, 356 and 357, situated in Kilifi County.

(e) THAT costs of this Application be provided for.

4. In support of the Application dated 7th December 2015, the 2nd Defendant has deponed that he was not aware of the existence of this matter until when the 1st Defendant informed him that he had been served with a decree; that he lives and works in Nairobi and that the matter proceeded without his participation.

5. According to the 2nd Defendant, he has a good defence that raises triable issues; that the issues raised in this matter are res judicata ELC No. 32 of 2013 and that he should be allowed to defend the suit.

6. The 1st Defendant on the other hand deponed that the Judgment and decree herein was obtained as a result of proceedings to which he was not a party of; that there was ELC No. 32 of 2013 between the Plaintiff and himself in which the Plaintiff claim was dismissed and that the Plaintiff was aware of the pending appeal in the Provincial Appeal Committee.

7. In his Replying Affidavit, the 1st Plaintiff deponed that the 2nd Defendant was served through his workers; that he is the one who pointed out the 2nd Defendant's workers and that the 2nd Defendant should apply for cross examination of the process server.

8. The Applicants' advocates filed their respective submissions which I have considered.

9. The Defendants have denied that they were served with Summons to Enter Appearance by the Plaintiffs.

10. In his Affidavit of Service filed on 31st October 2013, the process-server deponed that on 22nd October 2013 he served the 1st Defendant's wife and the 2nd Defendant's servants with the summons to Enter Appearance and the Plaint.

11. The Affidavit of Service of the process server shows that neither the 1st Defendant nor the 2nd Defendant were personally served with Summons to Enter Appearance.

12. Indeed, the people who purportedly received Summons to Enter Appearance on behalf of the 2nd Defendant cannot in law receive Summons on behalf of the 2nd Defendant .

13. Before the process-server purported to serve the 1st Defendant's wife, there is no evidence of the attempts he made to serve the 1st Defendant personally with the Summons to Enter Appearance.

14. Having not been served with the Summons to Enter Appearance, the decision of this court should be set aside ex debito justitiae.

15. For those reasons, I allow the Applications dated 7th December 2015 and 2nd April 2016 as prayed.

Dated, signed and delivered in Malindi this 16thday of September, 2016.

O. A. Angote

Judge