LAWRENCE GITONGA v JANE WAMBUI WAKOGI & CHARLES MUTURI GITHII [2011] KEHC 1169 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. ELC 165 OF 2007

LAWRENCE GITONGA ……….............………………………PLAINTIFF

VERSUS

JANE WAMBUI WAKOGI …………………...……… 1ST DEFENDANT

CHARLES MUTURI GITHII ……………..........……….2ND DEFENDANT

RULING

This is an application by way of Notice of Motion under section 3A of the Civil Procedure Act and Order 10 Rule 11 of Civil Procedure Rules for orders that the judgment and/ or decree dated 30th July, 2009 be set aside and that the 2nd defendant be granted leave to file his defence within 14 days. The grounds advanced for the orders sought are that interlocutory judgment was entered in this case on 30th July, 2009 and the applicant was not aware of the proceedings herein until he was served with a Notice to show cause why execution should not be issued. Save for the Notice to show cause, the applicant has never been served with any summons to enter appearance or proceedings in this suit.

The subject matter being land it is in the interest of justice that this suit be heard on merit as the 2nd defendant was not aware of the suit and was thus, not given an opportunity to be heard. He was never represented in this case. In addition to those grounds, the applicant has sworn an affidavit which more or less repeated the grounds advanced.

The application is opposed and a replying affidavit has been sworn by the respondent herein. Both counsel have filed written submissions to address the application which I have noted alongside some authorities which have been cited. I have perused the record before me. The service of summons is said to have been effected by one Robert K. Mutuku on 2nd August, 2007. This was by way of a fixing the summons and plaint at the applicant’s door in the presence of the plaintiff and his adult son one Duglas Ngigi. This was done after two attempts to serve him had failed because he was not at home.

The affidavit of service filed in court on 30th October, 2007 is undated and it is not known when it was sworn by the deponent Robert K. Mutuku before the Commissioner for Oaths. The applicant has denied service thereof and said that he is not a hawker at Githunguri town but runs a business in Nakuru, Rift Valley. It is not true therefore that he was served with summons as alleged.

The applicant admits that he was served with a Notice to show cause. Indeed there is an affidavit of service sworn by the same process server Robert K. Mutuku on 1st April, 2011. The contents of this affidavit of service are instructive in that, the process server depones that on 30th March, 2011 accompanied by a Mr. Ngigi, son of the plaintiff “for purposes of identifying and pointing out” to him the said judgment debtor they proceeded to the said judgment debtor’s rented house at Engashura area of Mawanga estate in the outskirts of Nakuru town, whereupon he served him with the said Notice. The process server then continues to say that he knew the said judgment debtor by virtue of previous process he had personally effected unto him in this matter.I note that nowhere in his previous affidavit of service did he say that he met or had seen the applicant herein. In fact, in this second affidavit of service sworn on 1st April, 2011, he says he was accompanied by the plaintiff’s son “for purposes of identifying and pointing out to me” the applicant. It is not true therefore that he knew the applicant by virtue of any previous service. The foregoing completely shatters the credibility of this process server which goes to the root of this application.

The applicant may therefore be right that he was never served with any summons to enter appearance, that he lived in Nakuru as confirmed by the 2nd affidavit of service and that he was not aware of this suit. Bearing that in mind, I am persuaded that the applicant’s application must succeed. Accordingly, the judgment entered in this court on 30th July, 2009 is hereby set aside and all proceedings relating thereto must fall by the way side.

The 2nd defendant is hereby granted leave to file his defence within 14 days of today. The applicant shall also have the costs of this application.

Orders accordingly.

Dated, signed and delivered at Nairobi this 20th Day of September , 2011

A.MBOGHOLI MSAGHA

JUDGE