[2023] KEELC 601 (KLR)

Warui (Suing as Personal Representative of the Estate of Josphat Warui Mwangi) & 2 others v Mbugua & 3 others (Environment & Land Case 558 of 2007) [2023] KEELC 601 (KLR) (9 February 2023) (Ruling)

Neutral citation: [2023] KEELC 601 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 558 of 2007

LN Mbugua, J

February 9, 2023

Between

Michael Boro Warui (Suing as Personal Representative of the Estate of Josphat Warui Mwangi)

1st Plaintiff

Loice Wacheke Boro

2nd Plaintiff

James Kimani Boro

3rd Plaintiff

and

Grace Nyambura Mbugua

1st Defendant

Amos Ndungu Mbugua

2nd Defendant

Simon Kagiri Mbugua

3rd Defendant

Felix Kimani Mbugua

4th Defendant

Ruling

1. Judgment was entered for the plaintiffs herein on January 24, 2019. The 1st defendant has filed an application dated September 22, 2022 seeking orders that there be a stay of execution of the aforementioned judgment, that the decree issued thereof be set aside, and that she be granted leave to file her defence out of time pursuant to the attached draft statement of defence.

2. The application is premised on the grounds on its face and on the 1st defendant’s supporting affidavit sworn on September 22, 2022. She deposes that the issue of service is not clear, averring that on September 16, 2022, she was served with a letter from the district land surveyor, the decree in this matter and an order of the court dated November 17, 2021 through the local area chief. She contends that she was never served with any court proceedings yet her husband Mbugua Mwenja Kagiri died way back on April 5, 2003.

3. The applicant also states that during her late husband’s lifetime, she was not aware of the proceedings herein as they had separated about the year 2000. She adds that she is illiterate thus she could not have been aware of the alleged substituted service upon her through the Daily Nation Newspaper of October 19, 2018.

4. She also filed a further supplementary affidavit stating that her son, the 2nd defendant has mental illness.

5. On November 1, 2022, the matter came up before me for directions on the hearing of the application dated September 22, 2022 when a counsel by the name T T Nganga addressed the court as follows; “ I am for the interested parties. We want to come on record for the interested parties”. However, the intent to be joined in these proceedings is yet to be effectuated. It follows that the replying affidavit sworn on October 27, 2022 by one Zachary Ndungu Kagwe, an alleged interested party is not properly on record and is hereby disregarded.

6. The 1st and 3rd plaintiffs opposed the application vide a replying affidavit sworn on October 14, 2022 by 1st plaintiff where he avers that the 1st defendant/applicant is the widow and personal representative of the estate of Mbugua Mwenja Kagiri and she is also mother of 2nd defendant. He avers that the advocates on record for the defendants, Messrs Wambugu Kariuki & Associates advocates did file a defence dated February 4, 2004. He went on to give minute details of how service was being effected for the various events appertaining to the suit (see paragraph 7 to 14 of the deponent’s replying affidavit).

7. He avers that it is only upon realization that the suit property would be subdivided on October 3, 2022 in accordance with the decree that the 1st respondent rushed to file the current application.

8. I have considered all the arguments raised herein. The question for determination is whether the judgment of the court issued on January 24, 2019 should be set aside. The applicant (1st defendant) argues that service in this suit was not clear and that she has not been served with processes herein upon substitution of her husband who was the initial 1st defendant. She also says that the 2nd defendant is mentally ill.

9. I have perused the record and I find that at the initial stages of this suit, the 1st defendant was represented by John Mburu & Company Advocates as per the notice of appointment of advocates dated May 6, 2002.

10. The records further indicate that the 1st defendant passed on and he was substituted with the current applicant (Grace Nyambura Mbugua) in tandem with a grant issued on April 29, 2005. Thereafter, the plaint was amended accordingly and fresh summons were taken and served as per the affidavit of service dated January 24, 2007 filed in court on March 6, 2007. In that affidavit of service, the 1st plaintiff herein is identified as a brother of the deceased (Mbugua Mwenja Kagiri). Thus the parties are close relatives.

11. When the matter came up for hearing on October 17, 2018, the court gave directions that another hearing date be fixed and that service be effected via substituted service. The affidavit of service filed in court on November 6, 2018 confirms that the substituted service was effected. The Standard Newspaper cutting of November 3, 2018 was availed and it buttresses the fact that service was effected as per directions of the court.

12. This court is therefore inclined to find that both the current 1st defendant and her late husband were aware of or ought to have been aware of these proceedings.

13. On the issue raised by the 1st defendant that the 2nd defendant is suffering from a mental illness, there is no evidence that an application for appointment of his guardian was ever made, yet the said 2nd defendant has been a party herein since June 19, 2006 when the amended plaint was filed.

14. It is now 4 years since the judgment herein was entered. The reason for failing to defend the suit has not satisfactorily been explained by the 1st defendant. Further, this matter was filed 21 years ago in year 2002!. It will greatly prejudice the plaintiff if the suit was to start afresh all over again. In Anjeli Limited v Kenga Simba & 12 others; Chengo Omar & 19 others(intended interested parties) [2021] eKLR the court held that;“Whichever way I look at it, there is no substance in this application. The defendants were properly served and opted not to come to court. If a party is properly served and opts not to come to court, he can have nobody but himself to blame when judgment is entered against him. Nobody should shun a court proceeding thinking that they will automatically get an order for setting aside the judgment.”

15. In the final analysis I find that the application dated September 22, 2022 is not merited, the same is hereby dismissed with costs to 1st and 3rd plaintiffs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF FEBRUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-1st Plaintiff3rd PlaintiffKamuyu for ApplicantsCourt assistant: Eddel