[2009] KEHC 2004 (KLR)
The court found that there was no proper service of summons on the 2nd Defendant, the Makueni Land Disputes Tribunal. The affidavit of service was merely annexed to a supporting affidavit and not filed in accordance with the rules. Furthermore, the person allegedly served was an unnamed District Officer, not a...
Source-derived case information.
- Citation
- [2009] KEHC 2004 (KLR)
- Parties
- Plaintiff: Waiu Nzalu; Plaintiff: Mutuku Nzalu; Defendant: James Ngomo Mbwika; Defendant: Makueni Land Disputes Tribunal
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 209 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Judgment in Default of Appearance
- Outcome
- application dismissed
- Legal Topics
- Service of Process, Default Judgment, Land Disputes Tribunal, Proper Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waiu Nzalu
Plaintiff
Mutuku Nzalu
Plaintiff
James Ngomo Mbwika
Defendant
Makueni Land Disputes Tribunal
Defendant
Procedural Posture
Civil Case / Ruling on Application for Judgment in Default of Appearance
Legal Issues
- 1 Whether the 2nd Defendant Tribunal was properly served with summons to enter appearance.
- 2 Whether judgment can be entered against the 2nd Defendant for failure to appear and defend without proper service.
Ratio Decidendi
The court found that there was no proper service of summons on the 2nd Defendant, the Makueni Land Disputes Tribunal. The affidavit of service was merely annexed to a supporting affidavit and not filed in accordance with the rules. Furthermore, the person allegedly served was an unnamed District Officer, not a member or official of the Tribunal as required by law. As proper service is a mandatory prerequisite for entering judgment in default of appearance, the application by the plaintiffs was premature and could not be entertained. The court therefore dismissed the application and directed that the plaintiffs serve the summons afresh on the proper members of the 2nd Defendant Tribunal.
Court Disposition
application dismissed
Orders
- The plaintiffs' application for judgment in default of appearance against the 2nd Defendant is dismissed as premature.
- Plaintiffs to serve summons afresh on the proper membership of the 2nd Defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT MACHAKOS
CIVIL CASE 209 OF 2008
WAIU NZALU …………………………………………………… 1ST PLAINTIFF
MUTUKU NZALU ………………………………………………. 2ND PLAINTIFF
VERSUS
JAMES NGOMO MBWIKA ………………………………… 1ST DEFENDANT
MAKUENI LAND DISPUTES TRIBUNAL ………………. 2ND DEFENDANT
RULING
1. The Plaint in this suit was filed on 17/11/2009 and certain orders are sought against the 2nd Defendant Tribunal. Its decision in Land Case No. 211 of 1998 is being challenged and the 1st Defendant was the successful party in that case. The validity of the suit is being challenged in a Statement of Defence filed by the 1st Defendant on 23/12/2006 and at paragraph 7 thereof, the 1st Defendant has intimated that it will seek to have the suit struck off on a point of law but to-date no such application has been made. On 30/1/2009 the Plaintiffs filed an Application under Order IXA Rule 7 of the Civil Procedure Rules seeking leave to have judgment entered against the 2nd Defendant for failure to enter appearance and file a defence to the suit.
2. Sadly, whether or not the Application is merited in law is not an issue that I should delve into because when I retired to write the present Ruling, it occurred to me that in fact the Tribunal was never properly served with the Summons to Enter Appearance. I say so because the Affidavit of Service by John Mutinda Muasya is a mere annexture to the Supporting Affidavit sworn by Mutua Makau, Advocate on 29/1/2009. It has not been filed in accordance with Order V Rule 15 of the Civil Procedure Rules. Even if it had, there is in fact no service on the Tribunal. The person served is an unnamed D.O (District Officer) at Wote Township. A District Officer who is unnamed cannot be a proper person to be served on behalf of the Makueni Land Disputes Tribunal which is a statutory quasi-judicial body with a Chairman and Members who ought to be known as their appointment is publicized in the Kenya Gazette.
3. There being no proper service, the Application before me is premature and while dismissing it, let the Plaintiffs serve the Summons afresh on the proper membership of the 2nd Defendant as is the law.
4. I shall make no order as to costs.
5. Orders accordingly.
Dated and delivered at Machakos this 18thday of September2009.
ISAAC LENAOLA
JUDGE
In presence of: Mr Musyoka h/b for Mr Makau
ISAAC LENAOLA
JUDGE