SWK (Minor), LWK (Minor) & George King’iri Wanjohi v A.C.K. ST. James Cathedral Kiambu, Paragon Property Consultants Ltd & County Government of Kiambu [2019] KEHC 2457 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 29B OF 2015

SWK (MINOR)..............................................................1ST PETITIONER

LWK (MINOR).............................................................2ND PETITIONER

GEORGE KING’IRI WANJOHI.................................3RD PETITIONER

-VERSUS-

A.C.K. ST. JAMES CATHEDRAL KIAMBU........1ST RESPONDENT

PARAGON PROPERTY CONSULTANTS LTD...2ND RESPONDENT

COUNTY GOVERNMENT OF KIAMBU..............3RD RESPONDENT

RULING

1) The subject matter of this ruling is the motion dated 13th June2019 taken out by George King’iri Wanjohi, the 3rdpetitioner herein.  In the aforesaid motion, the 3rdpetitioner sought for the orders issued on 14thJune 2017 to be set aside and for the suit to be reinstated.  The motion is supported by the affidavit sworn by the 3rdpetitioner.  The 1strespondent filed the replying affidavit of James N. Mungai to oppose the motion.  The firm of S. G. Wachira & Co. Advocates filed the affidavit of Ephraim Murigo to also oppose the 3rdpetitioner’s motion.

2) The main ground put forward by the applicant is that he wasnot served with the respondent’s application dated 23rdMarch 2017.  It was pointed out that the same was served upon the firm of S. G. Wachira & CO. Advocates which the 3rdpetitioner had not given instructions to represent him.

3) The aforesaid firm of advocates stated that it was giveninstructions to appear for the petitioners by an organization known asUrban Landlords and Tenants Association of Kenya (ULTAK).

4) Ephraim Murigo, the secretary General of ULTAK deponed thathe received the 3rdpetitioner in his office on 24. 8.2015 upon which he agreed to be a paid up member of ULTAK,   a body said to be  with a mandate to assist landlords and Tenants in Kenya who are not economically able to litigate on rental disputes.

5) Mr. Ephraim Murigo further deponed that the 3rd petitionerrequested for assistance from ULTAK and hence the firm of S. G. Wachira & Co. Advocates was then appointed to act for the petitioners free of charge.

6) The 1st respondent urged this court to dismiss the 3rdpetitioner’s application arguing that the same lacked merit.  It was pointed out that the firm of S. G. Wachira & Co. Advocates had been appointed by the 3rdpetitioner to appear hence his assertion that the aforesaid firm did not have his instructions is  false.  Both deponents annexed to their respective affidavits a copy of the  notice of appointment dated 24thAugust 2015 filed by the firm of S. G. Wachira& Co. Advocates.

7) I have analysed the arguments put forward by both sides.  Themain issue which will determine this motion is the answer to the question as to whether or not the firm of S. G. Wachira & Co. Advocates had instructions from the 3rdpetitioner to appear for him.  It is not in dispute that the aforesaid firm of advocates filed a notice of appointment as appearing for the petitioners.  However, I t would appear from the affidavit of Ephraim Murigo that theaforesaid firm was given verbal instructions to appear for the petitioners in this matter.  There is no evidence to show that the 3rdpetitioner ever visited the offices of the law firm of S. G. Wachira & Co. Advocates.

8) Ephraim Murigo has deponed in the supporting affidavit thatthe 3rdpetitioner is a paid up member of ULTAK.  However there is no documentary evidence to establish that fact.  It is not in dispute that the 3rdpetitioner did not personally give instructions to the firm of S. G. Wachira & Co. Advocates to appear for him in this matter.

9) I am persuaded by the 3rd petitioner’s submission that he didnot give such instructions therefore the aforesaid Law firmcannot be said to have instructions to appear for the 3rd petitioner.

10) In the end, I am convinced that the motion dated 23rd March2017 was not served upon the 3rdpetitioner.  The applicant is therefore entitled to seek for an order setting aside the orders allowing the motion dated 23. 3.2017 as unopposed made on 14. 6.2017.  Consequently, the orders made on 14thJune 2017 are set aside.  The motion dated 23rdMarch 2017 is reinstated together with the suit to be heard denovo.  Each party to meet its own costs.

Dated, Signed and Delivered at Nairobi this 9th day of October, 2019.

..........................

J. K.  SERGON

JUDGE

In the presence of:

...................................for the petitioner

.................................for the respondent