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ELCPartially AllowedNot stated in judgment· [2016] KEELC 261 (KLR)

Samson Muthami Ndungu v Shadrack Ndiritu Gichuhi & another [2016] KEELC 261 (KLR)

Environment and Land Court (implied by judge's reference to plaint, summons and notice of motion; the judgment does not name the court)
18 October 2016
LWL. N. Waithaka
471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out affidavits of service because documents were delivered to the wrong person, meaning the defendant had never been properly served.

What this practically means

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Executive summary

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The applicant, Shadrack Nderitu Gichuhi (1st defendant), moved the court by notice of motion dated 28th June, 2016 seeking to expunge from the record two affidavits of service sworn by process server Simon Ndirangu Ndumia on 25th May, 2015 and 7th July, 2015, on the ground that they were falsely sworn, and a declaration that he was never served with the summons to enter appearance or the amended notice of motion. In his supporting affidavit he deponed that he was never served with any court documents. The court examined the two affidavits of service. In the first, the process server stated that an unnamed employee of the applicant received the documents but refused to sign, promising to deliver them; in the second, he deponed that he served Murage Karugu Murage, described as the 1st respondent, at Matanya shopping centre. The court found that the 1st defendant was not personally served in the first instance, that the recipient's name was not given, and that Murage Karugu Murage was not the 1st respondent in the matter. The court concluded that if any service was effected, it was not properly done. It granted prayer 1 of the motion and directed that the defendant's counsel be properly served with the summons to enter appearance, the plaint, verifying affidavit, amended plaint and amended notice of motion within seven days. Costs of the application were ordered to be in the cause. Judgment delivered at Nyeri on 18th October, 2016 by L. N. Waithaka, Judge.

Key legal issues

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Validity of service of summons and motion on the 1st defendant

Holding

Service was not properly effected; the affidavit of service of 25th May, 2015 does not identify the recipient, and the affidavit of 7th July, 2015 names a person who is not the 1st respondent in the matter

Reasoning

The court examined both affidavits of service. In the first, the process server deponed that an unnamed employee received the documents and refused to sign; in the second, the person served, Murage Karugu Murage, was referred to as the 1st respondent but was not the 1st respondent in the suit. The court concluded that any service effected was improper and granted expungement and a direction for proper service.

p. 1

Legal principles established

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  • Service must be effected on the correct party and properly documented; service on the wrong person or an unnamed recipient does not constitute proper service

Court orders

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  1. 1.Prayer 1 of the notice of motion dated 28th June, 2016 granted
  2. 2.The defendant's counsel to be properly served with the summons to enter appearance, the plaint, verifying affidavit and amended plaint dated 11th May, 2015 and the amended notice of motion dated 2nd June, 2015 within seven (7) days from the date of the order
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court in a pending suit (no specific constitutional or statutory provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samson Muthami Ndungu v Shadrack Ndiritu Gichuhi & another [2016] KEELC 261 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/261/eng@2016-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.