Soft White Beach Limited v Joseph Kashuru Mumbo, Masumbuko Yerry Kombe, Attorney General, Chief Land Registrar & District Land Registrar [2015] KEELC 174 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.30 OF 2011

SOFT WHITE BEACH LIMITED......................................PLAINTIFF

=VERSUS=

1. JOSEPH KASHURU MUMBO

2. MASUMBUKO YERRY KOMBE

3. THE HON. ATTORNEY GENERAL

4. THE CHIEF LAND REGISTRAR

5. THE DISTRICT LAND REGISTRAR........................DEFENDANTS

R U L I N G

1. The Application by the 1st Defendant  dated 14th April 2015 is seeking for the dismissal or striking out of the Plaintiff's suit with costs.

2. The Application is premised on the grounds that the 1st Defendant has never been served with Summons to Enter Appearance, Plaint or other pleadings; that sometimes in September 2014, the 1st Defendant was informed by Mr. Kenga advocate to give him instructions which he did and that later on the 1st Defendant came to realise that Mr. Kenga was also acting for the 2nd Defendant who is the 1st Defendant's adversary and who had swindled the 1st Defendant of his money and the suit property.

3. In response, the Plaintiff's advocate submitted that M/s Kenga & Co. Advocates entered appearance for both the 1st and 2nd Defendants and filed a defence on 13th May 2011.

4. The Plaintiff's counsel deponed that Mr. Kenga advocate was instructed by the 1st Defendant; that Summons to Enter Appearance and the Plaint addressed to the 1st Defendant were served on the firm of M/S Kenga & Co. Advocates and that the 1st Defendant has been attending court.

5. I have considered the submissions by the 1st Defendant's counsel.

6. The Affidavit of service sworn on 20th April 2011 shows that the 2nd Defendant was served with summons through his wife on 20th April 2011.  However, the process server was unable to trace the 1st Defendant.

7. On 13th May 2011, the firm of Kenga & Co. Advocates filed a Defence for both the 1st and 2nd Defendants.  Annexed on the counter-claim is a Verifying Affidavit signed by the 2nd Defendant and the consent signed by the 1st  Defendant.

8. In the consent that was filed in this court on 13th May 2011, the 1st Defendant authorised Masumbuko  Yerry Kombe, the second Defendant to sue and sign an affidavit and liaise with M/S Kenga Advocates in prosecuting or defending the matter.  The consent was drawn by the firm of Kenga & Co. Advocates and signed by the 1st Defendant.  The consent was annexed on the Defence and counter-claim.

9. The Plaintiff has annexed on its Replying Affidavit a copy of the 1st Defendants summons to Enter Appearance that were served on the firm of Kenga Advocates on 4th April 2011.

10. In his Affidavit, the 1st Defendant has admitted that he instructed the firm of Kenga & Co. Advocates to act for him in writing in the year 2014.

11. According to the 1st Defendant, the instructions he gave to Mr. Kenga were backdated to the year 2011 by the advocate.

12. The consent that the 1st Defendant signed was filed in this court together with the Defence and counterclaim on 13th May 2011.  The 1st Defendant has not denied that he signed the document.  Having admitted that he signed the document, he cannot turn around and state that the document was backdated to 2011 by his advocate.  How can the document be backdated by his then advocate if it has a court stamp of 13th May, 2011.

13. The firm of Kenga & Co. Advocates was served with Summons to Enter Appearance for the 1st Defendant on the basis of the instructions that the 1st Defendant gave to his advocate whereafter a Defence and Counter-claim together with a Verifying Affidavit and the 1st Defendant's consent were filed.

14. Order 5 Rule 8(2) of the Civil Procedure Rules provides that Summons may be served upon an advocate who has instructions to accept service and to enter appearance to the Summons and Judgment in default of appearance may be entered after such service.

15. I am satisfied that the 1st Defendant gave to the firm of Kenga & Co. Advocates instructions on or before 13th May, 2011 to receive summons on his behalf and the said summons were duly served on his advocates. Indeed, the 1st Defendant signed the letter of instructions on 13th May 2011.

16. If the 1st Defendant has now realised that Mr. Kenga is acting for the 2nd Defendant who is his adversary, he has the option of engaging another advocate, which he has done, and proceed with defending the suit, and nothing else.

117. For those reasons, I dismiss the 1st Defendant's Application dated 14th April 2015 with costs.

Dated and delivered in Malindi this 23rdday of October2015.

O. A. Angote

Judge