Joseph Ndua Kioko & Rabecca Nthenya Ndua v Munyao Kioko Kikeu & Justine Penina Munyivam [2018] KEELC 3093 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 459  OF 1998 (O.S)

JOSEPH NDUA KIOKO............................................1ST PLAINTIFF

RABECCA NTHENYA NDUA.................................2ND PLAINTIFF

VERSUS

MUNYAO KIOKO KIKEU....................................1ST DEFENDANT

JUSTINE PENINA MUNYIVAM.........................2ND DEFENDANT

RULING

1. In the Application dated 14th November, 2017, the Defendants are seeking for the setting aside of the exparte proceedings and to be allowed to defend the suit.

2. The Application is premised on the grounds that the Applicants were never served with Summons to Enter Appearance and the Originating Summons; that the Applicants were never given a chance to defend the suit and that the Respondents will not be prejudiced if the Application is allowed.

3. In his reply, the 1st Plaintiff deponed that the firm of Manthi Masika and Co. Advocates filed a Replying Affidavit sworn by Bernard Munyao on behalf of the 1st, 2nd and 3rd Defendants; that the Defendants were served with the Originating Summons by way of advertisement and that the Defendants/Applicants were given an opportunity to defend themselves.

4. In his submissions,  the Defendant’s/Applicants’ advocate submitted that the Applicants have never instructed the firm of Manthi Masika & Co. Advocates to represent them; that the draft Grounds of Opposition to the Plaintiff`s Originating Summons raises triable issues and that the Application has been made without unreasonable delay.  Counsel relied on several authorities which I have considered.

5. The Plaintiffs’/Respondents’ advocate submitted that the Memorandum of Appearance was categorical that the firm of Manthi Masika was appearing for the 1st, 2nd and 3rd Defendants and that the Defendants were served with the amended Originating Summons by way of advertisement.

6. The Plaintiffs’ advocate finally submitted that in any event, the Defendants do not live on the suit land and that the Defendants were allocated their respective plots by Katelembo Athiani Muputi Co-operative Society Limited.

7. The two Plaintiffs filed the Originating Summons dated 4th December, 1998 claiming that they have acquired parcels of land number Machakos Town/Block 3/1150 and 1151 by way of adverse possession. The firm of M.Masika & Company Advocates entered appearance on behalf of the 1st, 2nd and 3rd Defendants on 4th January, 1998.  On 3rd December, 2001, the firm of M.Masika & Co. Advocates withdrew from acting for the 1st Defendant.  However, they continued acting for 2nd and 3rd Defendants/Applicants.

8. When the Plaintiffs filed an amended Originating Summons on 24th October, 2011, they were allowed to serve the same on the Defendants by way of substituted service, which they did vide the Nation Newspaper of 29th August, 2013.  Despite being represented by the firm of M.Masika advocates and being served for a second time by way of advertisement, the Defendants did not defend the suit.

9. On the basis of the Affidavit of Service on record, I am satisfied that the Defendants were duly served with the Originating Summons.  For those reasons, I dismiss the Application dated 14th November, 2017 with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 25TH DAY OF MAY, 2018.

O.A. ANGOTE

JUDGE