Joel Kiragu Karigi,Bernard Karimi Gacharia & Joseph Ngacha Karigi v Esther Njiraini,Felister Wanjiku,Muria-Igiri Nduiga,Munguti Njau Karaga,John Charibu,Judy Kagio,Lilian Nyaguthii,Mithamo Gateru,Ann Wambui & Gicimu Kanji [2017] KEELC 2106 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC  CASE NO. 11 OF 2014

JOEL KIRAGU KARIGI ……………………………1ST PLAINTIFF

BERNARD KARIMI GACHARIA………………..…2ND PLAINTIFF

JOSEPH NGACHA KARIGI…………………..…...3RD PLAINTIFF

VERSUS

ESTHER NJIRAINI ……………………………..1STDEFENDANT

FELISTER WANJIKU …………………….……2ND DEFENDANT

MURIA-IGIRI NDUIGA ………………………....3RD DEFENDANT

MUNGUTI NJAU KARAGA……………………..4TH DEFENDANT

JOHN CHARIBU ……………………………….5TH DEFENDANT

JUDY KAGIO …………………………………....6TH DEFENDANT

LILIAN NYAGUTHII……………………………..7TH DEFENDANT

MITHAMO GATERU ……………………………8TH DEFENDANT

ANN WAMBUI ……………………………….….9TH DEFENDANT

GICIMU KANJI ………………………..…..…..;10TH DEFENDANT

RULING

The parties herein are acting in person and there is usually considerable difficulties in handling matters where parties have no legal representation. The Court must nonetheless try and serve justice to the parties notwithstanding such challenges.

On 27th October 2015, I delivered a judgment in favour of the plaintiffs and ordered that the defendants do remove the structures put on the road leading to the plaintiffs properties within (60) sixty days or else be evicted therefrom.  That judgment was obtained ex-parte as the defendants though served by a process server by the name FRANCIS KUNGA MUGI CPS No. 002024 neither entered appearance nor filed any defence.

I now have two applications pending my determination. The first application is by the defendants dated 22nd December 2015 and it seeks the main prayer that this Court’s judgment dated 27th October 2015 be set aside together with the Decree and consequential orders.  That application is supported by the affidavit of FELISTER WANJIKU sworn on behalf of the other defendants and the gist of their complaint is that they were never served with the plaint and summons herein and that the judgment was obtained stealthily, irregular and unlawfully. Although the application purports to have been drawn by an advocate called Francis Kinyanjui, it is clear to me that this must be among the several con-men masquerading as advocates in this region.

Then there is the plaintiffs’ Notice of Motion dated 31st March 2017 seeking to dismiss the defendants’ application dated 22nd December 2015 for want of prosecution.  It is their case that the defendants’ application filed more than one year ago has not been prosecuted.

In response to that application, the defendants have filed a replying affidavit in which they state that they have been waiting to be informed about the out-come of that application by their advocate who has since relocated to another place and therefore they have now decided to act in person.   They add further that the plaintiffs have not responded to that application and should therefore be construed as not opposing it.

It is clear to me that the person describing himself as Francis Kinyanjui advocate cannot be an advocate and must have misled the defendants.   It is also clear that the plaintiffs have not filed any response to the defendants’ application seeking to have the judgment dated 27th October 2015 set aside.  As stated earlier, the parties are all in person and obviously have challenges in articulating their grievances.  For now, I have before me a judgment obtained against the defendants allegedly after they failed to enter appearance having been served.  In the interest of justice, I find it prudent to first determine if indeed the defendants were duly served as per the affidavit of service filed herein by FRANCIS KUNGA MUGI on 2nd October 2015.   I would like to confirm that indeed there was such service before I make further orders with respect to the defendants’ application dated 22nd December 2015 which must be canvassed first.

Accordingly, I make the following orders:

1. The process server namely FRANCIS KUNGA MUGI of P.O. BOX 28 KERUGOYA CPS No. 002024 be summoned to appear here on 13th July 2017 to confirm if indeed he served the defendants herein.

2. Thereafter, this Court will consider the defendants’ application dated 22nd December 2015 and make a ruling thereon.

B.N. OLAO

JUDGE

16TH JUNE, 2017

Ruling delivered, dated and signed in open Court this 16th day of June 2017

1st Plaintiff – present

2nd Plaintiff – present

3rd Plaintiff – deceased

2nd Defendant – present

5th Defendant – present

6th Defendant – present.

B.N. OLAO

JUDGE

16TH JUNE, 2017