Samson Muthami Ndungu v Murage Karugu Murage & 2 others [2016] KEELC 1087 (KLR)
The bottom line
#A Kenyan land court threw out freeze orders after a process server swore false affidavits claiming to have served a man who died a decade earlier.
What this practically means
#Executive summary
#Key legal issues
#Validity of service on a deceased 1st defendant
Service could not have been effected on the 1st defendant who died in 2005; the process server's affidavits of service were false and the plaintiff and process server misled the court
The death certificate and letters of administration attached to the applicant's affidavit showed the 1st defendant died on 24th August 2005 and administration issued in 2007. It was therefore impossible for him to have been served in May and June 2015 as deponed by the process server. The court concluded the affidavits were false and that the plaintiff had approached the court with unclean hands.
Addition of a defendant under Order 1 Rule 10(2)
The applicant was properly joined as a defendant to defend the suit on behalf of the deceased 1st defendant's estate, and the deceased's name struck out
The applicant held letters of administration for the estate of the deceased 1st defendant, issued on 15th January 2007. The plaintiff did not oppose her joinder. The court invoked Order 1 Rule 10(2) to substitute the estate's legal representative for the deceased defendant.
Discharge of prohibitory orders under Order 40 Rule 7
The interim prohibitory orders granted on 2nd June 2015 were discharged because they were founded on false affidavits of service
Since the prohibitory orders were granted ex parte on the basis that the defendants had been served, and that basis was shown to be false, the court exercised its discretion under Order 40 Rule 7 to discharge the orders rather than allow further discretionary relief to the plaintiff.
Sanction for a false affidavit of service
The process server was convicted of the offence under Order 5 Rule 15(2) and fined Kshs.5,000/-, with one month's imprisonment in default
The court applied Order 5 Rule 15(2) of the Civil Procedure Rules, 2010, which criminalises knowingly making a false affidavit of service. It found the process server, Simon Ndirangu Ndumia, guilty and imposed the statutory fine with a default sentence, and directed that warrants of arrest issue.
Legal principles established
#- Any person who knowingly makes a false affidavit of service is guilty of an offence under Order 5 Rule 15(2) of the Civil Procedure Rules, 2010, liable to a fine not exceeding five thousand shillings or one month's imprisonment or both
- A litigant who misleads the court on service approaches the court with unclean hands and forfeits discretionary orders
Court orders
#- 1.The prohibitory orders issued on 2nd June, 2015 are discharged
- 2.Under Order 1 Rule 10(2), the name of the 1st defendant is struck out of the plaint and the name of Miriam Wanjiku Murage is added as a defendant
- 3.The process server Simon Ndirangu Ndumia is found guilty of making a false affidavit of service and fined Kshs.5,000/-, in default imprisonment for one month
- 4.Warrants of arrest to issue for Simon Ndirangu Ndumia
- 5.Costs of the application awarded to the applicant
- Jurisdiction invoked
- Order 1 Rule 10(2) and Order 40 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Muthami Ndungu v Murage Karugu Murage & 2 others [2016] KEELC 1087 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1087/eng@2016-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.