Gilbert Gitari Bore & Omari Marijan Omari v Kenya Urban Roads Authority, Administrator – Chuka Township , County Government of Tharaka Nithi & Hyper Constructions & Equipment Company Ltd [2021] KEELC 3348 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT  AT CHUKA

CHUKA ELC CASE NO. 01  OF 2020

GILBERT GITARI BORE................................................1ST PLAINTIFF

OMARI MARIJAN OMARI............................................2ND PLAINTIFF

VERSUS

KENYA URBAN ROADS AUTHORITY.....................1ST DEFENDANT

THE ADMINISTRATOR – CHUKA TOWNSHIP.....2ND DEFENDANT

THE COUNTY GOVERNMENT

OF THARAKA NITHI...................................................3RD DEFENDANT

HYPER CONSTRUCTIONS &

EQUIPMENT COMPANY LTD....................................4TH DEFENDANT

RULING

1. This application filed by the 3rd defendant’s advocate seeks orders:

1. THAT this Application be certified as urgent and service thereof be dispensed with at the first instance.

2. THAT this Honourable Court be pleased to grant a stay of execution of the herein Judgment together with the resultant Decree, as against the 2nd and 3rd Defendants, pending the hearing and determination of this Application inter-partes.

3. THAT this Honourable Court be pleased to summon Dennis Murimi Gitari for purposes of cross-examination by the 2nd and 3rd Defendants’ Advocates on his Affidavit of Service sworn on 4th April 2020.

4. THAT this Honourable Court be pleased to set aside the Judgment delivered on 13th October 2020 and all preceding or subsequent orders made against the 2nd and 3rd Defendants.

5. THAT this Honourable Court be pleased to grant leave to the 2nd and 3rd Defendants to enter appearance and file a Statement of Defence out time.

6. THAT the costs of this Application be provided for.

2. The application has the following grounds:

a) THATthrough a Plaint dated 1st April 2020, the Plaintiffs moved this Honourable Court seeking several orders, the particulars of which are well set out in the said Plaint.

b) THAT the Plaintiffs’ case against the 2nd and 3rd Defendants proceeded undefended whereafter this Honourable Court delivered a Judgment on 13th October 2020.

c) THATin an Affidavit of Service sworn on 4th April 2020, by one Dennis Murimi Gitari, nowhere does the process server mention effecting service of copies of Summons to Enter Appearance and the accompanying Plaint upon the 2nd and 3rd Defendants.

d) THATfrom the record, it is clear that the 2nd and 3rd Defendants were not served with Summons to Enter Appearance and the accompanying Plaint.

e) THATthe 2nd and 3rd Defendants were not aware of the herein suit's existence until 25th January 2021 when the 3rd Defendant’s Principal Legal Officer stumbled on the Ruling delivered herein on 7th April 2020 on Kenya Law’s case search engine while researching on a different matter.

f)  THATthe 2nd and 3rd Defendants are desirous of defending the herein suit.

g) THAT the 2nd and 3rd Defendants have a reasonable Defence that raises triable issues and thus should be given a chance to defend the herein suit.

h) THAT the Plaintiffs are likely to execute the herein Decree at any time.

i) THAT should the Plaintiffs proceed to execute the herein resultant Decree, the 2nd and 3rd Defendants shall suffer irreparably as they will have been condemned unheard.

j) THAT the 2nd and 3rd Defendants seek this Honourable Court’s urgent intervention by way of an order of a stay of execution of the herein Judgment and the resultant Decree, as against them, pending the hearing and determination of the Application filed herewith inter-partes.

k) Other grounds to be adduced at the hearing hereof.

3. The application is buttressed by the affidavit of Lilian Gatwiri Kiruja, the Principal Officer of the 3rd defendant and it states as follows:

SUPPORTING AFFIDAVIT

I, LILIAN GATWIRI KIRUJA, of Post Office Box Number 10 – 60406 Kathwana within the Republic of Kenya do hereby make oath and state as follows: -

1.  THAT I am a Principal Legal Officer in the County Government of Tharaka Nithi, and in my capacity, I am well seized of the facts and attendant circumstances surrounding this matter. I am therefore competent to make and swear this Affidavit on behalf of the 2nd and 3rd Defendants.

2. THATthrough a Plaint dated 1st April 2020, the Plaintiffs moved this Honourable Court seeking several orders, the particulars of which are well set out in the said Plaint.

3. THAT the Plaintiffs’ case against the 2nd and 3rd Defendants proceeded undefended whereafter this Honourable Court delivered a Judgment on 13th October 2020.

4. THATin an Affidavit of Service sworn on 4th April 2020, by one Dennis Murimi Gitari, nowhere does the process server mention effecting service of copies of Summons to Enter Appearance and the accompanying Plaint upon the 2nd and 3rd Defendants. Annexed hereto and marked‘LGK-1’is a copy of the said Affidavit of Service.

5. THATfrom the record, it is clear that the 2nd and 3rd Defendants were not served with Summons to Enter Appearance and the accompanying Plaint.

6. THATthe 2nd and 3rd Defendants were not aware of the herein suit's existence until 25th January 2021 when I stumbled on the Ruling delivered herein on 7th April 2020 on Kenya Law’s case search engine while researching on a different matter.

7. THAT due to the aforesaid it was not possible for the 2nd and 3rd Defendants to have instructed their Advocates to enter appearance and/or file a defence as they were not aware of any suit against them.

8. THATthe 2nd and 3rd Defendants are desirous of defending the herein suit.

9. THAT the 2nd and 3rd Defendants have a reasonable Defence that raises triable issues and thus should be given a chance to defend the herein suit. Annexed hereto and marked ‘LGK-2’ is a copy of the 2nd and 3rd Defendants’ Draft Statement of Defence.

10. THAT the Plaintiffs are likely to execute the herein Decree at any time.

11. THAT should the Plaintiffs proceed to execute the herein resultant Decree, the 2nd and 3rd Defendants shall suffer irreparably as they will have been condemned unheard.

12. THAT the 2nd and 3rd Defendants seek this Honourable Court’s urgent intervention by way of an order of a stay of execution of the herein Judgment and the resultant Decree, as against them, pending the hearing and determination of the Application filed herewith inter-partes.

13. THAT the Application filed herewith has been filed brought without unreasonable delay.

14. THAT it is in the interest of justice that the orders sought in the Application filed herewith be granted.

15. THAT I swear this Affidavit in support of the 2nd and 3rd Defendants’ Application that this Honourable Court stays the execution of the herein Judgement and the resultant Decree, as against the 2nd and 3rd Defendants, pending the outcome of the Application filed herewith and that the herein Judgement be set aside, and the 2nd and 3rd Defendants be allowed to file their Defence out of time.

16. THAT what is deponed to hereinabove is true to the best of my knowledge, information and belief save where otherwise stated.

4. On 12th May, 2021, counsels for the plaintiff and for 2nd and 3rd defendants proffered a consent which they asked the court to adopt as its order. The consent reads as follows:

By consent, of counsel for the plaintiff and 2nd and 3rd Defendants, we hereby record a consent as follows:-

“1. That the 2nd and 3rd Defendants be and are hereby exempt from the execution of Judgment delivered on 13. 10. 2020 together with the consequent decree.

2. That the application dated 28. 1.2021 be marked as heard and determined.”

Dated at Chuka this 12th day of May, 2021.

Miss Ambani h/b for Mr. Saluny for 2nd & 3rd Defendants

Wanjiru Njihia for the 1st Plaintiff/Respondent

5. The consent is properly executed.

6. The consent is hereby adopted as an order of this court.

7. Application marked as determined as concerns the 1st Plaintiff and the 2nd and 3rd defendants.

8. No costs are awarded.

DELIVERED IN OPEN COURT AT CHUKA THIS 12TH DAY OF MAY, 2021

IN THE PRESENCE OF:

CA: Ndegwa

Miss Ambani h/b Saluny for 2nd and 3rd Defendants

Wanjiru Njihia for 1st Plaintiff/Respondent

P. M. NJOROGE,

JUDGE.