MUTHITHI INVESTMENTS LIMITED v ANDREW S. KYENDO, AMINA MOHAMED, WILLIAM K. MWANGAGI, ROSEMARY NYOKABI & 19 others [2006] KEHC 1641 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Civil Case 498 of 2004

MUTHITHI INVESTMENTS LIMITED ………................................……………………… PLAINTIFF

VERSUS

ANDREW S. KYENDO ……………………........................………………………1ST  DEFENDANT

AMINA MOHAMED …………………………...........................……………………2ND DEFENDANT

WILLIAM K. MWANGAGI ………………………...........................……………….3RD DEFENDANT

ROSEMARY NYOKABI ……………………….........................…………………..4TH DEFENDANT

JAMES BANGA ……………………………….......................……………………5TH DEFENDANT

MESHACK O. AMBUKA……………………......................……………………..6TH DEFENDANT

BERNARD MUTTAHA ……………………….....................……………………7TH DEFENDANT

W. OKEYO MBATA ……………………………......................………………….8TH DEFENDANT

J.M. KAGAI ……………………….....................………………………………...9TH DEFENDANT

JANE WANGECI………………………...................…………………………..10TH DEFENDANT

RAPHAEL K. THIMBA ………………....................…………………………..11TH DEFENDANT

MARY N. KAGO …………………….....................…………………………….12TH DEFENDANT

DICK OUMA OCHIENG…………....................……………………………….13TH DEFENDANT

DAVID AUMA……………………….....................…………………………….14TH DEFENDANT

PATRICK NDIRANGU………………..................……………………………15TH DEFENDANT

SAID ALI ABU………………………....................…………………………….16TH DEFENDANT

SAMUEL NGATIA…………………....................……………………………..17TH DEFENDANT

JAMES NJOROGE………………….................……………………………...18TH DEFENDANT

MARY NDUKU KIOKO………………....................………………………….19TH DEFENDANT

MAINA MUTAHI……………………….....................…………………………20TH DEFENDANT

JOHN MWAURA WAINAINA…………....................………………………...21ST DEFENDANT

MUDIA MUCHEMI………………………....................……………………….22ND DEFENDANT

NAMAN OGEMBO OGWENO……………...................……………………..23RD DEFENDANT

R U L I N G

On 14. .06. 06 learned counsel, Mr G.M. Masese appeared                      before me and sought directions that the 13th – 23rd defendants/applicants be given a chance to defend this suit plus a time limit to file defence and serve the plaintiff.

Learned counsel, Mr. D. Njogu who appeared for the plaintiff/respondent submitted that the issues on which the 13th – 23rd defendants/applicants were seeking directions were pending before my sister Mugo, J.  In particular, plaintiff’s/respondent’s counsel contended that the issue whether or not the 13th – 23rd defendants were properly served or at all should have been determined before Mugo, J at the  hearing of chamber summons dated 18. 01. 06 vide which the issue of service on 13th – 23rd defendants arose.

In reply, Mr Masese for 13th – 23rd defendants/applicants submitted that the issue of service on 13th – 23rd defendants had already been determined by Mugo, J who made a ruling on 31. 03. 06 to the effect that counsel, Mr Kariuki who had previously represented the plaintiff had deliberately misled my court that the defences of the 13th – 23rd defendants had been struck out by Mugo, J alongside those of the 1st – 12th defendants while only the defences of the 1st – 12th defendants had been so struck out by the learned Judge.  Mr. Masese contended before me on behalf of the 13th – 23rd defendants/applicants that if the plaintiff/respondent was dissatisfied with Mugo, J’s ruling of 31. 03. 06, the said plaintiff/respondent should have appealed against the learned Judge’s ruling or sought its review.

The court record shows that on 25. 11. 04 learned counsel, Mr. Kariuki represented the plaintiff/applicant in chamber summons application dated 05. 07. 04 when that application went before my brother P.K. Kariuki, J.  The record for that day shows that Mr. Burugu represented the 1st – 12th defendants/respondents and that the court (Kariuki, J) was informed, no doubt by plaintiff’s/applicant’s counsel Mr Kariuki, that the 13th – 23rd defendants/respondents had not entered appearance though they had been served.  That is the position I was made to understand to be prevailing on 18. 07. 05 when this matter first came before me for formal proof.  There was no appearance for defendants on that date, i.e. 18. 07. 05.  This was after the defences of the 1st – 12th defendants had been struck out by Mugo, J vide her ruling delivered on 17. 06. 05.  As I understood it, the reference to defendants in the record of 18. 07. 05 and their non-appearance was to all the 23 defendants, i.e. the 1st – 12th defendants whose defences had been struck out by Mugo, J on 31. 03. 06 and the 13th – 23rd defendants previously reported by plaintiff’s counsel, Mr. Mariuki to have failed to enter appearance despite having been served.  The ex-parte proceedings before me of 18. 07. 05 and the resultant judgment were, therefore, premised on the above scenario.

Now that the 13th – 23rd defendants have raised the issue of service on them vide their chamber summons application dated 18. 01. 06 supported by the affidavit of Maina Mutahi (20th defendant) on his own behalf and on behalf of the rest of the 13th – 23rd defendants, I was of the respectful view that the best way to resolve the dispute regarding service on the 13th – 23rd defendants would have been to have the chamber summons dated 18. 01. 06 plus its supporting affidavit served on the plaintiff’s previous counsel, Mr. Kariuki for him to file affidavit response thereto.  However, I now understand from Mr. D. Njogu, counsel for plaintiff/respondent that Mr. Kariuki died in a road accident on 02. 06. 06 and that he is not available to file affidavit response to justify the statement he made to Justice P.K. Kariuki on 25. 11. 04 regarding service on 13th - 23rd defendants.  Mr. Njogu, however, has stated that the process server concerned, Mr. Godfrey Gichuki is available.  I order that the said Godfrey Gichuki files affidavit response to the chamber summons dated 18. 01. 06 on the issue of service on 13th – 23rd defendants/applicants and thereafter this matter to come before me for further directions.  Mention on 26. 07. 06.  It is so ordered.

Delivered at Nairobi this 24th day of July, 2006.

B.P. KUBU

JUDGE