Giathi Kieya v County Commissioner Kiambu,Land Registrar Kiambu County,Mecy Wairimu,Susan Murugi & Beth Wanjiku [2018] KEHC 3027 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT NAIROBI

ELC SUIT NO. 1153OF 2016

GIATHI KIEYA.................................................................PLAINTIFF

VERSUS

COUNTY COMMISSIONER KIAMBU..............1ST DEFENDANT

LAND REGISTRAR KIAMBU COUNTY.........2ND DEFENDANT

MECY WAIRIMU................................................3RD DEFENDANT

SUSAN MURUGI..................................................4TH DEFENDANT

BETH WANJIKU..................................................5TH DEFENDANT

RULING

The plaintiff brought his suit against the defendants on 21st September, 2016 seeking a single prayer namely, that the 2nd defendant be directed to remove the restriction that has been placed on the parcel of land known as Limuru/Bibirioni/2586 (“the suit property”). From the record, it appears that a part from the summons to enter appearances which were taken out on 28th April, 2017 for service upon the 1st and 2nd defendants, the plaintiff did not take out any other summons to enter appearance. This means that the 3rd, 4th and 5th defendants were not served with summons to enter appearance.

On 24th October, 2016, the 3rd, 4th and 5th Defendants entered appearance notwithstanding the fact that they had not been served with summons to enter appearance as aforesaid.  They thereafter filed a joint statement of defence on 10th November, 2016 in which they denied the plaintiff’s claim in its entirety.  In their defence, the 3rd, 4th and 5th defendants have averred that the restrictions which the plaintiff is complaining about were placed on the title of the suit property at the request of their late mother to stop the plaintiff from disposing off the suit property which is the only family land and leaving the 3rd, 4th and 5th defendants and their siblings homeless.  The 3rd, 4th and 5th defendants have averred that the said restrictions were lawfully placed against the title of the suit property and that the plaintiff had instituted a similar suit at the lower court in Limuru which is pending.

What is now before me is the plaintiff’s Notice of Motion application dated 31st March, 2017 in which the plaintiff has sought orders that the 3rd, 4th and 5th defendants’ statement of defence be struck out and judgment be entered for the plaintiff as prayed in the plaint. The application which is supported by the affidavit of the plaintiff is brought on the grounds that the defence by the 3rd, 4th and 5th defendants is scandalous, frivolous and vexatious. The plaintiff has contended further that the said defence is a mere denial and raises no triable issues. The plaintiff has also contended that the defence was filed out of time and as such inadmissible.

The plaintiff’s application was opposed by the 3rd, 4th and 5th defendants through a replying affidavit sworn by the 4th defendant on 5th May, 2017.  The application was argued orally on 17th January, 2018. I have considered the application and the affidavit filed in opposition thereto by the 3rd, 4th and 5th defendants.  I have noted from a copy of the certificate of official search dated 1st November, 2016 that there are a total of three (3) restrictions registered against the title of the suit property the last of which was registered on 11th December, 2015 pending the outcome of Limuru SPMCC No. 69 of 2015.  The first two (2) restrictions were registered on 7th July, 2011 and 28th January, 2015 following letters that were written to the 2nd defendant by the District Officer of the area where the suit property is situated.  The plaintiff has not denied that the 3rd, 4th and 5th defendants are his daughters.  The 3rd, 4th and 5th defendants have contended that the restrictions aforesaid were placed by their deceased mother to stop the plaintiff who is alleged to be an alcoholic from selling the suit property which is the only family land.  Whether or not the 3rd, 4th and 5th defendants instigated the registration of the said restrictions is a triable issue.  The same applies to whether the said restrictions are valid.  In the circumstances, I am not in agreement with the plaintiff that the 3rd, 4th and 5th defendants’ defence filed herein is frivolous and vexatious or that it is raises no triable issues.

On whether the defence was filed out of time, I agree that that is the case.  This cannot however warrant the striking out of the said defence in the circumstances of this case.  As I have mentioned earlier, the plaintiff did not take out summons to enter appearance for service upon the defendants within the prescribed time.  The 3rd, 4th and 5th defendants who were not served with summons to enter appearance were not obliged to enter appearance or file defence.  Having entered appearance and filed a defence, I can see no basis upon which the plaintiff who failed to take out summons and whose suit should have been struck out for want of summons can seek the striking out of the defence by the defendants who filed a defence without having been served with summons.

For the foregoing reasons, I find no merit in the Notice of Motion dated 31st March, 2017.  The application is dismissed with costs.

Delivered and Dated at Nairobi this 11  day of  October 2018

S. OKONG’O

JUDGE

Ruling read in open court in the presence of:

The Plaintiff in person

N/A for the 1st Defendant

N/A for the 2nd Defendant

Ms. Nyandwaro h/b for Ms. Muhuhu for the 3rd, 4th and 5th Defendants

Catherine Court Assistant