David Njogu Karanja v The Commissioner Of Lands & 3 Others [2013] KEHC 5956 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELC CASE NO 372 OF 2012

MULTI-TRACK

DAVID NJOGU  KARANJA ...................................PLAINTIFF

VERSUS

THE COMMISSIONER OF LANDS &

3 OTHERS......................................................DEFENDANTS.

JUDGEMENT.

The Plaintiff herein David Njogu Karanjabrought this claim against the Defendants herein, 1st defendant the Commissioner of Lands, 2nd Defendant, the Principal Registrar of Title, 3rd Defendant, Njuguna Ngunjiri and 4th Defendant Agnes Mumbi Ngunjiri for orders that:-

A declaration that Plots No. 513and514 Ruiru Townpreviously known as‘A’ and ‘B’belong to the Plaintiff.

An order directing the 1st an 2nd Defendants to cancel and /or revoke the Titles issued to 3rd and 4th Defendants in respect to the Plots No.513 and 514 Ruiru town previously known as ‘A’ and ‘B’ Ruiru township .

Cost of the suit.

2.     The Plaintiff in his Plaint has alleged that since 1954, he has       occupied these plots known as number 513 and 514 in     Ruiru.  He further alleged that he has occupied these plots    together with his wife, children and now grandchildren. He   further averred in the plaint that, in the late 1990, the 1st         and 2nd Defendants issued title deeds to 3rd and 4th       Defendants for these plots.  The Plaintiff        contended that this         allocation was un-procedural irregular and illegal and       was done fraudulently.  This was done without consideration to         the plaintiff interest and the commissioner of land was misled as all material facts were not disclosed.

Due to the said error, the 1st Defendant attempted to recall   the title but in vain. He further contended that the 3rd and   4th Defendants        have severally attempted to eject him but in vain. Plaintiff further averred that if Defendants are   allowed to continue with their acts, then the Plaintiff  will    be internally displaced and his constitutional right will     have been infringed.

3.     The Defendants herein did not Enter Appearance. An   interlocutory Judgement was entered against the 3rd and   4th Defendant herein. An affidavit of service dated 23rd        July, 2012 showed that the Summons to Enter Appearance     were served on Agnes Mumbi Ngunjiri on 17/7/2012 .  The         said Agnes Mumbi Ngunjiri  is allegedly the wife of 3rd Defendant. The 3rd and 4th Defendant did not enter     appearance. Interlocutory Judgement was entered    against    them on 3/10/2012.  The case was thereafter set down for         formal proof on 10/4/2013.

4.     However, the Court has noted that there was no evidence     that 1st and 2nd Defendants herein where served with       summons to Enter Appearance. Interlocutory Judgement         was not entered against them.  Without evidence of service         of summons, the court cannot        find and hold that 1st and 2nd         Defendant were served with summons to enter      appearance and they failed to do so.

I have considered the plaint.  I have noted that the orders    sought are directed to the 1st and 2nd Defendants.  If the         1st    and 2nd Defendants were not served with summons to   enter appearance, then the Court cannot make Orders     against them without allowing them an opportunity to be     heard.  That would amount to    be condemned unheard.

Though the article 159(1) (d) of the Constitution mandates   the   Court to administer justice without undue regard to      technicalities    and procedure,failure to serve summons to    enter appearance goes to the root of the case. That         omission is fatal to the Plaintiff’s case.

The orders sought by the Plaintiff herein have a bearing on the 3rd and 4th Defendants.  However, they are directed to 1st        and 2nd Defendants.  The Court cannot therefore issue the    sought orders in the absence of evidence that the 1st and       2nd Defendants were served with Summons to enter         Appearance.

5.     Having found that Summons to Enter Appearance were not served on the 1st and 2nd Defendants.  I find that, the said omission was fatal to the Plaintiff’s case. The Court       consequently dismisses the Plaintiff’s case herein entirely    with no orders as to costs.

Dated, Signed and delivered this 14th day of June, 2013.

28 days Right of Appeal

L.N. GACHERU

In the Presence of:-

Ms Atieno holding brief Mutiso for the Plaintiff

None attendance for the Defendant

AnneCourt Clerk

L.N. GACHERU