Priscilla Jeruto Kisoso v Kiporot Ole Totona alias Singo Arap Totona, Tungo Totona, Ledema Totona & Ronald Totona [2016] KEELC 229 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF  KENYA

AT NAKURU

HCC NO  20  OF 2006

PRISCILLA JERUTO KISOSO…..……………..PLAINTIFFF

VERSUS

KIPOROT    OLE TOTONA alias SINGO ARAP

TOTONA………..…………………………….1st DEFENDANT

TUNGO TOTONA………...………….………2ND DEFENDANT

LEDEMA TOTONA………………..….....…..3RD  DEFENDANT

RONALD  TOTONA………….....…….……..4TH  DEFENDANT

RULING NO. 1( of  21ST  MARCH 2016)

1. This matter is today scheduled for hearing. Mr. Karanja has however raised an issue on the counterclaim, being that the 2nd – 5th defendants in the counterclaim have never been served. He has asked   that   their names be struck off.

2. This has been opposed by Mr. Arusei for the defendants and plaintiff in the counterclaim. He submitted inter alia that he is ready with the plaintiff’s case and the issue of how to proceed on the counterclaim may be addressed later. He also submitted that if aggrieved, Mr. Karanja can file an application under order 7 Rules 3 and 12.

3. I have considered the issue. The Amended Defence and counterclaim was filed on 4th November 2011. Although   Mr. Arusei submitted that there is no defence to the counterclaim, I have actually seen one filed on 29th November 2011 by the plaintiff in the original suit. I have  not seen the  place  of order  7  Rules  3  and 12  cited by  Mr. Arusei.  These  provide for a situation  where  one   party applies that the  counterclaim be heard  separately, which  is not the sort of  application  being  tabled  by  Mr. Karanja.

4. What Mr. Karanja is saying is that the other parties in the counterclaim have not been served and they should be struck off. Although Mr Arusei argued that Mr.  Karanja  cannot  raise such  issue  as he does  not   act   for these  persons, I actually  am of  the view that  he can as his client is one  of the  parties  in the counterclaim.

5. I think the issue is addressed by other 5.  Under Order 5 Rule 1, the summons was to be prepared and collected by the plaintiff in the counterclaim. He then had a duty to serve under Order 5 Rule 2 (7). If service is not effected   within 24 months the suit may be dismissed.

6. It is over   4   years   since the counterclaim   was filed. There has been no application   to extend time for service.  4 years by any stretch of imagination is too long a period for  service  not to  have been effected. This suit has been in court  for over  10  years now.  I   am  of the view  that the  most  appropriate  order is to strike  out the  parties  named as 2nd, 3rd, 4th  and 5th defendants in the counterclaim. They are so struck off.

7. The matter will proceed with the plaintiff in the original   suit being the only defendant  in the counterclaim.

8. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 21st day of March, 2016.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of :

Mr  Lawrence  Karanja   present  for   plaintiff

Mr  Arusei   present  for  defendant

Court  Assistant   :  Janet

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU