Patrick Kipketer Birech v Ezina Kadenyi Mugamangi, Benard Mubawanga, Patrick Savah, Aggrey Ndazalira, Alex Chumba, Diana Lumu & Haron Igatwa Lumu [2021] KEELC 2878 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

CASE NO. 23 OF 2018

PATRICK KIPKETER BIRECH............................................................PLAINTIFF

VERSUS

EZINA KADENYI MUGAMANGI ...............................................1ST DEFENDANT

BENARD MUBAWANGA ..........................................................2ND DEFENDANT

PATRICK SAVAH ......................................................................3RD DEFENDANT

AGGREY NDAZALIRA .............................................................4TH DEFENDANT

ALEX CHUMBA ....................................................................... 5TH DEFENDANT

DIANA LUMU ........................................................................... 6TH DEFENDANT

HARON IGATWA LUMU .........................................................7TH DEFENDANT

RULING

This ruling is in respect of two applications dated 8th December 2020 by the  1st ,2nd 3rd and 4th defendant/applicants  and  another  one dated 20th January 2021 by the  6th and 7th Defendants  seeking for the following orders respectively:

a)   Spent.

b)  THAT pending the hearing and determination of the application herein inter-parties the Honourable Court be pleased to grant an order of stay of impending eviction due on the 9th December 2020 or any other date.

c)   THAT pending the hearing and determination of the application herein inter-parties, the Honourable Court be pleased to grant an order of stay of the Court proceedings including the interlocutory Judgment hitherto entered against the Defendants/Applicants on the 23 Day of October 2018.

d)  THAT the Defendants/Applicants be granted leave to file their statement of defence and counterclaim out of the prescribed time.

The application was supported by the annexed affidavit of one Ezina Kadenyi Mugamangi.

The second application dated 20th January 2021 sought for the following orders:

a)   Spent

b)  That, pending the hearing and determination of the Application herein, the Honourable Court be pleased to grant an order of stay of the Court proceedings including the interlocutory Judgment hitherto entered against the Defendants/Applicants on the 23 Day of October 2018

c)   Pending the hearing and determination of the instant Application, the Honourable Court be pleased to grant an interim order of injunction, restraining the Plaintiff/Respondent, by himself, agents, servants and/or anyone claiming under him (plaintiff) from interfering, putting in structures, harassing, evicting, moving into the suit land and/or dealing in any other manner with land parcel number NANDI/CHEBILET/ 171.

d)  The Honourable Court be pleased to grant the Defendants/Applicants leave to cross-examine the Process Sever on the Affidavits of Service dated 15th February, 2018 and 25th April, 2018.

e)   The Honourable Court be pleased to set aside, annul and/or vary the interlocutory Judgment entered against the Defendant/Applicant on the 23rd  October 2018, together with all the consequential orders.

f)   Consequent to prayer (iv) hereinabove being granted, the Honourable Court be pleased to grant the Defendants/Applicants leave to file their statement of Defence and counterclaim.

Parties agreed to canvas the applications by way of written submissions which were duly filed.

The brief facts of the case are that the plaintiff filed this suit seeking eviction orders against the Defendants. Counsel for the plaintiff caused the Summons to Enter Appearance, Plaint together with all the accompanying pleadings to be served upon the Defendants by a Process Server who filed an Affidavit of Service dated 15th February, 2018 in that regard.

Subsequently when the matter came up for mention for direction on 16th April, 2018 counsel for the Plaintiff sought a date for formal proof hearing noting that the Defendants had not filed a Memorandum of Appearance and Statement of Defence. The Court slated the matter for formal proof on 30th July, 2018 and directed that a hearing notice be issued to that effect.

Counsel for the Plaintiff issued hearing notices to the Defendants and caused them to be served upon them by a process server and an Affidavit of Service was duly filed in Court.

After the formal proof hearing, the court delivered judgment on 23rd October, 2018 and warrants of were issued to Femfa Auctioneers on 4th November 2020 of which the defendants stated that they learnt of the existence of the plaintiff’s claim on 5th December 2020 when they were served with an eviction order which was scheduled for 9th December 2020.

DEFENDANT/APPLICANTS’ SUBMISSIONS

It was counsel’s submission that the defendants were never served with Summons to Enter Appearance thus they were not aware of the existence of the Plaintiff’s claim and relied on the case of Equatorial Commercial Bank Limited v Mohansons (K) Limited [2012] eKLR stating that the object and scope of summons is to make the Defendant aware of the suit filed against him.

Counsel further submitted that the affidavit of service on record sworn by Patrick Getamo Ongeri is full of false information and irregularities that misled the Honourable Court to enter judgment in favour of the plaintiff/respondent. Further it was counsel’s submission that the  process server did not indicate how he identified each of the Defendants/Applicants on the said date of service as he only stated that he proceeded to the Defendants "Applicants premises on the suit land NANDl/CHEBlLAT/171 and conducted  service where the Defendants declined to sign. Further that the affidavit of service demonstrates that the process  Server  served the Summons in the year 2012 way before the suit was filed.

Counsel relied on Order 10 Rule 11 of the Civil Procedure Rules, 2010 that states as follows:

"Where judgment has been entered under this order the court may set aside or vary Such judgment and any consequential decree or order upon such terms as are just.”

Counsel also cited the case of JAMES KANYIITA NDERITU & ANOTHER V MARIOS PHILOTAS GHIKAS & ANOTHER CIVIL APPEAL NO 6 OF 2015 eKLR. Where the court held that:

"From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one which is irregularly entered. In a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under order 70 rule Of the Civil Procedure Rules, to move the court to set aside the default judgement 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 default judgment, and will take into account such factors as the reason for 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 friable issues; the respective prejudice each patty is likely to suffer and whether on the whole if is in the interest of justice to set aside the default judgment, among others see Mbogo & ano vs Shar (1968) EA 98 Patel vs E.A. Cargo handling service ltd (1975) E.A.  75, Chemwolo & Another —vs- Kubende (7986) KLR 492 and CMC Holdings -vs- Nzioka 120041 1 KLR 173.

In an irregular default judgment, on the other hand; judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The COUH does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises friable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.

It was counsel’s submission that every party has a constitutional right to be heard and that parties should not be deterred from approaching the seat of justice and that the court has powers to set aside its interlocutory judgment as was held in the case of Waweru vs Ndiga (1993) KLR 236 and cited in 1 P J v 1M J K [2017] eKLR whereby the court of appeal reviewed and upheld its previous decision on the application under order 10 Rule 11 of the Civil Procedure Rules and held that;

“A court is has unfettered discretion to do justice between the parties further it held that it may be just and on the facts of a particular case to set aside an exparte judgment to avoid hardship or injustice arising from the inadvertence or mistake ..”

Counsel therefore urged the court to allow the application as prayed with costs to the applicant.

PLAINTIFF/ RESPONDENT’S SUBMISSIONS

Counsel for the plaintiff opposed the application on the grounds that the applicant has failed to establish that they were neither served with the Summons to enter Appearance, nor that they have an excusable   mistake and that they have a reasonable defence. Counsel urged the court to dismiss the application with costs.

ANALYSIS AND DETERMINATION

This is an application for setting aside interlocutory judgment on the grounds that the defendants were never served with the summons to enter appearance.  Setting aside judgments is governed by the provisions of Order 10 Rule 11 of the Civil Procedure Rules, 2010.

The issue for determination in this case is whether the defendants were served with summons to enter appearance and whether the court can exercise its discretion to set aside judgment.

In the case of GICHARU KIMANI AND ASSOCIATES ADVOCATES V SAMWEL KAZUNGU KAMBI [2020] eKLR  the court made the following observation when faced with an Application to set aside an interlocutory judgment:

Considering the circumstances of this motion, the facts regarding the merits or demerits of it one must take into account in exercise of discretion that its within the ambit of the guiding principles laid down in the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another Civil Appeal No 6 of 2015 eKLR (Msa), the Court of Appeal stated as follows:

“We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case.  From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered.  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 to set aside the default judgment, among other. (See Mbogo & Another v Shah (supra), Patel v EA Cargo Handling Services Ltd {1975} EA 75, Chemwolo & Another v Kubende {1986/KLR 492 and CMC Holdings v Nzioki {2004/1 KLR 173})’. In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance.  In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right.  The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgement on its own motion.  In addition, the court will not venture into considerations of whether the intended defence raises triable issues or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations.  The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.  (See Onyango 0100 v Attorney General {1986-1989 1EA 456})”

The defendants deponed that they were never served with the summons to enter Appearance, the Plaint together with all the other accompanying documents and that they only became aware of the Plaintiff/ Respondent’s claim against them when they were served with an eviction notice.

By affidavits by the process server dated 15th February, 2018 and 25th April, 2018 respectively  deponed as follows:

15th February, 2018:

·    That am a process server of the honourable court and I am sanctioned to effect service of civil process.

·    That on 01/2/2018 I received summons to enter appearance from Anassi Momanyi and Company Advocates with instructions to effect service of the same upon each of the defendants herein Ezina Kadenyi Mugamangi, Benard Mubawanga, Patrick Savah, Aggrey Ndazalira, Alex Chumba, Diana Lumu and Haron Igatwa Lumu.

·    That on 1/2/2012 in the company of the plaintiff travelled to Chebilat with a view of effecting service of the summons, plaint, verifying affidavit statements of witness and list of documents upon each of the defendants.

·    That while at Chebilat in the plaintiff's company I proceeded to land reference Nandi/Chebilat/171 where the defendants were said to reside.

·    That at about 11. 30am the plaintiff identified each of the defendants to me whom I served with the plaint, verifying affidavit, statement of witness, list of documents and documents and summons to enter appearance.

·    That I required each of the defendants to endorse their signatures on the summons to enter appearance but none was willing to endorse the summons to enter appearance despite being served.

·    That I return the summons to enter appearance duly served upon each of the defendants.

·    That each of the defendants was pointed out to me by the plaintiff.

25th April, 2018

·    That I am a duly licensed process server of the High Court of Kenya hence competent to swear this affidavit.

·    That on 20/4/2018, I received a hearing notices dated 16th  April, 2018 from M/S Anassi Momanyi & Co.  Advocates with instructions to serve same upon the defendants herein.

·    That on the same day proceeded to Chebilat within Nandi County with a view of effecting service of the hearing notices.

·    That while at Chebilet I proceeded to Nandi/Chebilat/171 where the defendants reside.

·    That I effected service of the hearing notices upon the defandants at 11:30am.

·    That I required the defendants to endorse their signatures on the hearing notices but they were not willing to endorse the hearing notices despite being served.

·    That I return the hearing notice duly served upon the defendants who were already personally known to me and I had previously served with summons to enter appearance…

In examining the authenticity of the aforementioned Affidavits of Service, the provisions of Order 5 rule 15 of the Civil Procedure Rule, 2010 is instructive in this regard:

[Order 5, rule 15. ] Affidavit of service.

15. (1) The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.

It is not in contention that the Affidavits of Service dated 15th February, 2018 and 25th April, 2018 outline the time when service took place and also indicate that the Defendants were identified by the Plaintiff.

I find it strange that the defendant was all at the same place and time when both summons and hearing notices were served on the defendants. Both indicate that they were served at 11. 30 am. What a coincidence?

There are crafty process servers who file falsehoods on oath which impedes administration of justice and access to justice for litigants. This is a practice that should be stopped administratively.

The application for injunction was never argued and even if it was, the same would not be granted before the application for setting aside judgment.

Having considered the pleadings, the application and the submissions by counsel and find that the application has merit and is allowed as prayed.  The interlocutory judgment of this court is hereby set aside with costs in the cause.

The defendants granted 14 days to file and serve their defences and comply with Order 11 within 30 days.

DATED and DELIVEREDatELDORETthis 14TH DAY OF JUNE, 2021

M. A. ODENY

JUDGE