[2017] KEELC 3009 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

CASE NO. 86 OF 2010

ZACHARIA ONSONGO MOMANYI ....................................... PLAINTIFF

VERSUS

ERASTO NANGA MANASSE ........................................ 1st DEFENDANT

DAVID NYAMOTA ORWENYO ..................................... 2nd DEFENDANT

EVANS OMURWA ONCHAGWA ................................... 3rd DEFENDANT

R U L I N G

1. On 31st March, 2010, Zacharia Onsongo Momanyi as “the plaintiff” instituted this suit jointly and severally against Erasto Nanga Manasse, David Nyamota Orwenye and Evans Omurwa Onchagwa as the 1st, 2nd and 3rd defendants respectively claiming:-

1) Cancellation of defendant's names from title Central Kitutu/Mwabundusi/638 and the same be registered in the names of the plaintiff and in default of the defendants signing transfer documents , the Executive Officer of this court be ordered to sign all transfer documents in favour of the plaintiff.

2) Costs and interest

3) Any other or further relief the honourable court may deem fit to grant in the interest of justice....”

2. The brief facts of the suit are that the plaintiff claims to have been the registered proprietor of all that piece or parcel of land known as Central Kitutu/Mwabundusi/612and that in January 2010 he wanted to subdivide the same to sell a portion thereof to the defendants. However, the plaintiff states he was surprised to find out from the lands registry, that the defendants had already caused the subdivision of the land and that the 3rd defendant was registered as proprietor of Central Kitutu/Mwabundusi/638, a portion hived out of land parcel Central Kitutu/Mwabundusi/612. The plaintiff contends that he never sold any land to the defendants and that the registration of the 3rd defendant as proprietor of land parcel Central Kitutu/Mwabundusi/638 was fraudulent and it is on that account the plaintiff seeks the cancellation of the title and the restoration of the same to the plaintiff’s name.

3. The plaintiff states the defendants though served with summons never entered appearance and did not file any defences. The suit proceeded to hearing by way of formal proof and the court on 14th October, 2011 delivered judgment granting prayers (i) and (ii) sought in the plaint notwithstanding that the court found the evidence adduced by the plaintiff in court to be at variance with what was pleaded in the plaint respecting whether or not the plaintiff had sold a portion of land to the 3rd defendant.

4. The 3rd defendant’s Notice of Motion application dated 9th September 2013 brought under Order 9 Rule 9 and 11, Order 12 rule 7 and Order 50 Rule 1 of the civil Procedure rules prays for orders that:

1. The Honourable Court be pleased to grant leave for the firm of M/S Nyauke & Company Advocates to come on record for the 3rd defendant.

2. The Honourable Court be pleased to set aside it's judgment issued and delivered on the 14th October 2011 and all consequential orders and thereafter the Applicant/ 3rd Defendant be granted leave to file his defence.

3. The Honourable Court be pleased to make an order of stay of execution of the decree above issued on 31st October 2011 pending the hearing and determination of this application.

4. That the 3rd Defendant/ Applicant draft statement of defence be deemed filed upon payment of prerequisite fees.

5. The costs of this application be provided for.

5. The application is supported by the 3rd defendant’s affidavit. The 3rd defendant avers that he was not served with the summons to enter appearance in the suit. He stated he was at the time the suit was filed the registered owner of land parcel Central Kitutu/Mwabundusi/638 which was the subject matter of the suit. He averred that he was not served with summons as alleged by the process server in the affidavit of service filed in court. He contended that had he been served he would have appeared and defended the suit and avers that he has a viable and arguable defence on merits which he was denied the opportunity to present. He averred that he stood to suffer prejudice and injustice in case the judgment delivered on 14th October 2011 and all the consequential orders are not set aside.

6. The plaintiff opposed the 3rd defendant’s application and swore a replying affidavit dated 11th October 2013 in opposition thereto. The plaintiff deponed that he is now the registered owner of land parcel number Central Kitutu/Mwabundusi/638 following execution of the decree resulting from the judgment delivered on 14th October 2011. The plaintiff averred that the 3rd defendant was properly served with summons and hearing notice at Homa Bay Hospital as explained in the filed affidavit of service. The plaintiff thus contends the 3rd defendant has been afforded the opportunity to be heard but chose not to appear and that the court was in the circumstances entitled to proceed with the hearing ex parte. The plaintiff further argues the decree of the court having been executed there was nothing to stay and urged the court to dismiss the 3rd defendant’s application.

7. The parties argued the application by way of written submissions. I have reviewed and considered the pleadings, the affidavits in support and in opposition to the application. I have also considered the submissions filed by the parties. The issues to determine are firstly, whether the court should grant leave to the firm of M/s Nyauke & Company Advocates to come on record for the 3rd defendant, and, secondly whether in the circumstances of this case the court should exercise its discretion to set aside the ex parte judgment entered against the 3rd defendant and grant him leave to defend.

8. On the first issue whether or not the firm of Nyauke & Company Advocates ought to be allowed to come on record for the 3rd defendant, I see no difficulty. Order 9 Rule 9 which provides for change of advocate or for a party to act in person having previously engaged an advocate after entry of judgment in my view is widely permissive and that an application for an advocate to come on record for a party after entry of judgment ought to be granted as a matter of course once a party makes such an application. Order 9 Rule 9 provides:-

“Where there is a change of advocate, or when a party decide to act in person having previously engaged an advocate after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court.;-

a) upon an application with notice to all the parties; or

b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

In the case of Kazungu Ngari Yaa -vs- Mistry Naran Mulji & Co.[2014] eKLR interpreting the above provision Radido J held:

“My understanding of the above provision is that under (a) the new advocate or the party in person makes a formal application to the Court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under this first scenario, the consent of the previous advocate is not necessary, but the party must give notice and then satisfy the Court to grant leave.

In the second scenario under (b), the new advocate or party in person needs to secure the written consent of the previous advocate on record, file the consent in Court and then seek leave to come on record. My understanding of the scenario under (b) is that a formal written application is not necessary and that once consent has been filed, an oral or informal application would be sufficient to move the court.''

9. In the present application, the firm of Nyauke & Co. advocates have made a formal application before this court for grant of leave to come on record for the 3rd defendant. The said firm has attached an affidavit of service stating that the firm of Sagwe & Company Advocates who acted for the plaintiff has been notified of their intention to come on record on behalf of the 3rd defendant. In addition to this, the fact that the plaintiff has already filed a replying affidavit opposing the above application by the 3rd defendant clearly demonstrates that the plaintiff is already aware of the intended change of advocate by the 3rd respondent. In the circumstances this court grants leave to the firm of Nyauke & Co. Advocates to come on record for the 3rd defendant.

10. As relates to the second issue whether or not the court should set aside the ex parte judgment, the court has to consider the conditions and/or circumstances under which an ex parte judgment may be set aside. The 3rd defendant has premised his application under Order 12 Rule 7 which provides as follows:-

7. Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set or vary the judgment or order upon such terms as may be just.

While Order 12 Rule 7 deals with setting aside of judgments or orders resulting from default of attendance by a party at the hearing, Order 10 Rule 11 deals with setting aside of judgments and orders resulting from non appearance, default of defence and failure to serve. Order 10 Rule 11 provides as follows:-

11. Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.

11. The principles that guide the court in considering applications under both provisions are similar. In the case of James Wanyoike & 2 Others –vs- CMC Motors Group Ltd & 4 Others [2015] eKLR the court considered an application made under Order 10 Rule 11 and held thus:-

“...The principles and tests for setting aside an ex parte judgment can be summarized as follows:-

1. That the court has unfettered, unlimited and unrestricted jurisdiction to set aside an ex-parte judgment.

2. That the test for setting aside an ex parte judgment are:-

a. Whether there is a defence on the merits.

b. Whether there would be any prejudice on the plaintiff

c. What is the explanation for any delay.

12. In the case of Mohamed & Another vs Shoka (1990) KLR463 the Court of Appeal held as follows:

“The test for the correct approach in an application to set aside default judgement are firstly whether there was a defence on merit, secondly whether there would be any prejudice and thirdly what is the explanation for any delay.”

Also in the case of Tree Shade Motors Ltd vs DT Dobie & Anor [1995-1998] 1EA 324it was held that:

“Even if service of summons is valid, the judgment will be set aside if defence raises triable issues. Where a draft defence was tendered together with an application to set aside a default judgment, the court hearing the application was obliged to consider if it raised a reasonable defence to the plaintiff claim. Where the defendant showed a reasonable defence on the merits, the court could set he ex-parte judgment aside.”

In the instant case, it is the 3rd defendant's contention that although his names appear as one of the parties in the case, he was not served with summons to enter appearance, the plaint and verifying affidavit. On the record there are affidavits of service made by one Isaiah Miruka, a process server on 15th April 2010 and 28th April 2010 where it is stated the 3rd defendant was at Iteresi village where he was supervising workers at a construction site. The affidavit of service of 15th April 2010 stated he was served with summons. A further affidavit of service dated 7th July 2010 by the same process server states the 3rd defendant was served summons at Homa Bay. In April 2010 the plaint had not been amended to include the 3rd defendant. It is not indicated where in Homa Bay the 3rd defendant was served with summons on the 23rd June 2010 when it is alleged he was served.

13. Noting that the 3rd defendant was at the time the suit was filed in 2010 the registered owner of land parcel Central Kitutu/Mwabundusi/638 and the suit was, as it were, seeking the revocation and cancellation of the title he held, he had every reason to defend the suit. There is a possibility that he actually may not have been served with the summons to enter appearance. In the affidavit of service made on 15th July 2010, it is alleged the 3rd defendant was served at Homa Bay but it is not indicated where in Homa Bay and/or how he was identified by the process server. In view of these inconsistencies i feel the issue of service of the 3rd defendant with summons to enter appearance has not been adequately explained. In those circumstances I am constrained to resolve the doubts in favour of the 3rd defendant and accordingly exercise my discretion in the 3rd defendant’s favour.

14. In Moses Omolo Atieno & another v John Njong Osingo [2015] eKLR Okongo Jheld:

“Where a party demonstrates that he was not served with an application that was heard by the court in his absence or that no notice was given to him of the date when the application was to be heard, on an application to set aside an order made ex parte in such an application, the court has no discretion on the matter. Such order is irregular and the aggrieved party is entitled to have it set aside ex debito justitae.”

15. Furthermore the observations made by Makhandia J. (as he then was) in his ex parte judgment delivered on 14th October 2011 also casts some doubt on the plaintiff's case. The learned judge made the following observation:

“I note that the plaintiff's evidence is somehow at variance with his pleadings in the plaint. For instance in paragraph 5 of the amended plaint, the plaintiff is categorical that he never sold .... any land to the defendant and demands that the defendants be evicted from his land and the defendants title deed Central Kitutu/ Mwambundusi/ 638 which was fraudulently obtained be cancelled and the land registered in the name of the plaintiff and the registry index map be rectified and restored into original size...”. Yet in his testimony, he conceded to have sold a portion of his land measuring 0. 1 ha to the defendants. The blowing of hot and cold at the same time by the plaintiff may cast doubt as to his credibility as a witness and or his claim”.

The 3rd defendant's advocate has annexed a draft defence to the instant application and a look at the said draft defence reveals that, the 3rd defendant contends that he was the lawful and registered proprietor of land parcel number Central KItutu/Mwabundusi/638 by virtue of being bona fide purchaser for value without notice. This in my view is a triable issue raised in the defence and the 3rd defendant would obviously be prejudiced if the judgment delivered on 14th October 2011 were not set aside by this court.

16. In the circumstances I will allow the 3rd defendants application dated 9th September 2013 in the following terms:

1) Leave is hereby granted to the firm of M/s Nyauke & Company Advocates to come on record for the 3rd defendant.

2) The judgment delivered on 14th October 2011 is hereby set aside and the 3rd defendant is granted leave of 21 days from the date of this ruling to file his defence.

3) I order that an inhibition be registered against land parcel Central Kitutu/Mwabundusi/638 restraining the registration of any further transactions and/or dealings affecting the land until further orders of the court.

4) The plaintiff is awarded “thrown away” costs assessed at kshs. 7,500/= to be paid by the 3rd defendant.

Ruling dated, signedand deliveredat Kisii this 17th day of March, 2017.

J. M. MUTUNGI

JUDGE

In the presence of:

……………………………… for the plaintiff

……………………………… for the 1st, 2nd and 3rd defendants

……………………………... Court assistant

J. M. MUTUNGI

JUDGE