Michael James Karanja v Boro Kabuthia, Margaret Wambui, Joseph Matheri Chege, Geoffrey Gatonye Karanja, Geoffrey Njaga Githua, Kinyanjui Kamondia, Moses Karanja, Mburu Githua, Mburu Nguruko, Njenga Kaibuti & Njenga Kariuki [2019] KEELC 2727 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO  323   OF 2014

MICHAEL JAMES KARANJA ........................................................PLAINTIFF

VERSUS

BORO KABUTHIA ...............................................................1 ST DEFENDANT

MARGARET WAMBUI........................................................2 ND DEFENDANT

JOSEPH MATHERI CHEGE .............................................3 RD DEFENDANT

GEOFFREY GATONYE KARANJA ...................................4 TH DEFENDANT

GEOFFREY NJAGA GITHUA ........................................... 5 TH DEFENDANT

KINYANJUI KAMONDIA ...................................................6 TH DEFENDANT

MOSES KARANJA................................................................7 TH DEFENDANT

MBURU GITHUA..................................................................8 TH DEFENDANT

MBURU NGURUKO ........................................................... 9 TH DEFENDANT

NJENGA KAIBUTI .............................................................10 TH DEFENDANT

NJENGA KARIUKI.............................................................11 TH DEFENDANT

RULING

1. On 10/6/2014, satisfied that the defendants had been served, the Deputy Registrar of the court directed that this suit be set down for hearing as an undefended cause as provided under Order 10 rule 9 of the Civil Procedure Rules.  Consequently, hearing proceeded before Nyamweya J on 22/4/2015.  Nyamweya J was subsequently transferred before disposing the matter and the file was assigned to Gitumbi J. On 22/9/2017, Gitumbi J rendered a judgment in the presence of the plaintiff and the 4th defendant. She granted the plaintiff the following orders which the plaintiff had sought in the plaint:

1.  That a declaratory order is issued compelling the defendants to vacate the said private property Parcel No. Karai/Lussiggeti/T1038

2.  That costs of this suit to the plaintiff

2.  About seven months later, on 19/4/2018, the defendants brought a notice of motion dated 19/4/2018 seeking to set aside the said judgment.  They also sought leave to defend the suit.  That application is the subject of this ruling.

3. The application was supported by an affidavit sworn on 19/4/2018 by Boro Kabuthia (1st defendant) and a further affidavit sworn on 7/2/2019 by the same deponent.  He deponed that they were served with summons to enter appearance and they duly instructed the firm of Mwendwa, Macharia Mwangi & Co Advocates but the said advocates failed to enter appearance and filed defence as required.  He added that they learnt about the ex parte judgment when the “Director County Commissioner of Kiambu” summoned them and gave them seven (7) days notice to vacate the suit property.  This triggered them to instruct the firm of Vusha Onsembe & Mambiri Company Advocates to peruse the court file and update them.

4. He further deponed that the suit property has always been described as open space and that they had occupied it since 1975 and that the title held by the plaintiff was fake.

5.  He contended that they had a good defence which raised triable issues warranting consideration on merits.  He added that the application had been brought properly.  The deponent further deposed that if the judgment was not set aside, they stood to suffer irreparable loss and damage and risked being rendered destitutes by the respondent.

6.  The plaintiff/respondent opposed the application through a replying affidavit sworn on 23/5/2018 and a further affidavit sworn on 13/11/2018.  He deposed that the applicants paid the County Council of Kiambu for open space known as Karai Open Space and Ndeiya/Karai Space while the judgment in this suit relates to Karai/Lusigetti/T.1038.  He added that the 4th applicant was in court when the judgment was delivered and the applicants had subsequently requested for an amicable settlement through their Member of Parliament.  He opposed the plea for setting aside the order contending that he was the proprietor of the suit property.

7. The application was canvassed through written submissions.The applicants submitted that their failure to enter appearance and file defence was attributable to their advocate.They added that interlocutory judgment had been procured illegally because the claim before court was not pecuniary.

8. The respondent submitted that the applicants’ failure to enter appearance and file defence was deliberate and not accidental.  The respondents added that the applicants were imprudent in the manner they handled the matter.

9.  I have considered the application together with the parties’ rival affidavits and submissions. I have also considered the relevant legal framework and jurisprudence.The single issue falling for determination in this application is whether the applicants have satisfied the criteria for setting aside a regular ex parte judgment.

10. The criteria upon which this court exercises jurisdiction to set aside a regular ex parte judgment is well settled. The Court of Appeal discussed the criteria in the case of James Kanyita Nderitu & another v Marios Philotas Ghika & another (2016) eKLR.  It stated thus:

“In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence resulting in default judgment.  Such a defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit.  In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered, whether the intended defence raises triable issues, the respective prejudice each party is likely to suffer, whether on the whole it is in the interest of justice to set aside the default judgment, among others.

11. In the application under consideration, the respondent holds a land parcel title registered in 1983.  The applicants do not hold any title to the suit property.  The applicants were served with summons to enter appearance in 2014.  They contend that they instructed advocates who did not implement their instructions.  On their part, they did nothing by way of follow-up for three years.  They contend that the subsequent communication they received was an eviction order served on them in 2017.  The court record tells a different story.  Firstly, the court record shows that the firm of Thuita Kiiru Advocates filed a notice of appointment on 6/5/2014 on behalf of all the defendants.  Secondly, affidavits of service on record show that on the occasions the case came up in court, service was affected on the applicants.  Thirdly, on the day judgment was rendered, the 4th applicant was in court. Notwithstanding the fact that the 4th applicant was in court when the impugned judgment was rendered, it took the applicants more than seven months to bring the present application.  No explanation has been tendered to explain this inordinate delay.

12.  I have considered the applicants’ draft statement of defence, counterclaim and the affidavit evidence in respect of the application.  The parcel register for the suit property was opened on 1/7/1983.  The respondents acquired the suit property on purchase.  The applicants did nothing to challenge the registration between 1983 when the parcel register was opened and 2014 when the respondent brought the suit, a period of 31 years.  The respondent is the registered proprietor of the suit property. The registration of the suit property 36 years ago did not provoke the applicants to commence action to challenge that registration.  This suit which sought their eviction did not similarly provoke them to bring a counterclaim and diligently pursue the matter.  Similarly, for seven months after delivery of the judgment herein in the presence of the 4th applicant, the applicants did not bother to pursue the matter.

13. Considering the above factors, I do not think this is a proper case where the discretionary jurisdiction to set aside a regular judgment should be exercised by this court.  Consequently, the notice of motion dated 19/4/2018 is rejected.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 28TH DAY OF JUNE 2019.

B  M EBOSO

JUDGE

In the presence of:-

Ms Kavuli holding brief for Mr Kenyatta  for the plaintiff

Mr Mambiri for the defendants

Court Clerk  -  June Nafula