Muriela Shirandula Sanya v Vincent Osundwa Makokha [2017] KEHC 2679 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ENVIRONMENT AND LAND CASE NO. 140 OF 2016.

(FORMERLY KAKAMEGA HCCC. NO. 229 OF 2012).

MURIELA SHIRANDULA SANYA………………...……………PLAINTIFF

VERSUS.

VINCENT OSUNDWA MAKOKHA………………..…………DEFENDANT

RULING.

[1].The applicant brings this application under Sec. 3A, 63(e) CPA and Order 10 Rule 11 of the Civil Procedure Rules.  The applicant prays for orders that the Court sets aside the Judgment/Decree delivered on 19/5/2014 and all consequential orders obtained thereto.  He prays that his defence filed herein out of time be admitted and the suit to proceed for hearing on merits.

[2].The applicants’ contention is that he was not served with summons to enter appearance and the plaint or any other documents informing him of the existence of this suit.  He says he became aware of this case when he came home to the suit land and found his house occupied by the respondent where upon on making inquiries he found out that there was a suit and a Judgment had been entered against him in this matter.  He argues that the failure by the respondent to serve him with summons to enter appearance and the plaint was intentional.

[3].The respondent in his replying Affidavit dated9/3/2015 avers that the applicant was served on 13/9/2012 at Insteel Company Limited at Industrial Area Nairobi where it is alleged the applicant was working.  The respondent says that he was present and saw the applicant being served. The respondent avers that the Judgment Notice by the Registrar of the Court was properly served on the applicant on 24th March, 2014 and on 9/4/2014.

The respondent denies that the applicant had built a house on the suit land but admits that the applicant had purchased 2 acres of land from him from land parcel North Kabras/Matsakha/133.

[4].There is no dispute that the applicant purchased 2 acres of land from the respondents land parcel North Kabras/Matsakha/133.  There was an agreement for sale of the same dated 23/12/2008 mutation was done pursuant to a survey done on 4/5/2009.  The same was registered by the land registrar on 24/9/2009.  A title was issued to the applicant on 10/2/2010.  The respondent filed a Civil Case No. 229 of 2012 against the applicant seeking for the deregistration of plot number(s) Kakamega/Matsakha/2062, 2063, 2064 Subdivisions of Kakamega/Matsakha/133.  In that case the respondent who was the plaintiff told the court that the applicant bought 2 acres from him but was allocated 2. 2 acres instead of the agreed 2 acres.  He produced an agreement for sale of the two acres and said that the consideration was Kshs.355,000/=.  He however denied signing the Mutation Forms and attending the Land Control Board for the transfer of the 2 acres.  The suit was decided in favour of the plaintiff on the basis that the applicant was served and did not attend court.

Now, the applicant alleges he was not served with the Summons to enter appearance and the plaint therein.  The issue of Service was not therefore what Judge Said Shitebwe was deciding on.  It was not an issue in that case.  However, it is the central issue herein.

The service was allegedly served on the applicant at Insteel Company Limited at Industrial Area Nairobi in the respondents presence.  The applicant denies that he was ever an employee of Insteel Company Ltd or that he ever worked there.  He alleges he was a student at that time at Methodist University and produced a Letter from that University.  The notice of delivery of Judgment by the Registrar of the Court was sent to a Mombasa address, there is no explanation why it was sent to that address.  The applicant says, that he had purchased two acres and built a house therein.  He states that there was no reason why he would not have come to defend ownership of his land if he had been served.  He had paid Kshs.355,0000/= for the same.  This fact is admitted by both parties herein.  I believe him.  No reasonable person would allow his land to go particularly when he had paid such an amount of money and particularly when he had documents of title.  The only plausible reason I can think of is that he was not served with the Summons and the Plaint in Kakamega High Court Civil Case No. 299 of 2012.  I give the applicant the benefit of the doubt.  On a balance of probabilities I hold that the applicants application has merit.  He was not aware of that suit.  No hearing date was served upon him.

[5].I allow the application,  set aside the Judgement herein delivered on 19/5/2014 and all its consequential orders.  The suit shall proceed for full hearing as required by law before the ELC Court at Kakamega.  The defence filed herein by the applicant shall be deemed as filed.  The suit shall proceed for hearing on merits, after compliance with the relevant provisions of the Civil Procedure Rules.

The costs of this application shall abide by final the decision of this case.

Ruling read in Open Court in the presence M/s  Wanjala.

Dated at Bungoma 4ththis day of  October, 2017.

S. MUKUNYA

JUDGE

In the presence of:

Court Assistant:  Chemutai/Joy

Miss Wanjala for Mr. Were for the interested Party – Absent

Plaintiff in person not present