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ELCDismissedOriginating Summons dated 4th December, 1998· [2018] KEELC 3093 (KLR)

Joseph Ndua Kioko & another v Munyao Kioko Kikeu & another [2018] KEELC 3093 (KLR)

Environment and Land Court
25 May 2018
OAO.A. Angote
472 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote, J) on the Defendants' application dated 14th November 2017 seeking the setting aside of ex parte proceedings so as to be allowed to defend the suit. The suit was an Originating Summons dated 4th December 1998 in which the two Plaintiffs claimed parcels Machakos Town/Block 3/1150 and 1151 by adverse possession. The firm of M. Masika & Co. Advocates entered appearance for the 1st, 2nd and 3rd Defendants, withdrew from acting for the 1st Defendant in 2001 but continued acting for the 2nd and 3rd Defendants. When the Plaintiffs filed an amended Originating Summons in 2011, they were allowed substituted service, effected through the Nation Newspaper on 29th August 2013. Despite representation and this second service by advertisement, the Defendants did not defend the suit. The Defendants argued they were never served, never instructed Manthi/M. Masika & Co. Advocates, and that their draft Grounds of Opposition raised triable issues, made without unreasonable delay. The Plaintiffs maintained that the Memorandum of Appearance recorded the firm as acting for the 1st to 3rd Defendants, that service by advertisement was effected, and that the Defendants do not live on the suit land, having been allocated their respective plots by Katelembo Athiani Muputi Co-operative Society Limited. Relying on the Affidavit of Service on record, the court was satisfied that the Defendants were duly served with the Originating Summons and dismissed the application with costs.

Key legal issues

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01

Whether the Defendants were served with the Originating Summons

Holding

The court found that service was duly effected, including substituted service by advertisement in the Nation Newspaper, and that the Defendants were represented by counsel during the proceedings.

Reasoning

The Defendants had entered appearance through the firm of M. Masika & Co. Advocates on 4th January 1998, which continued acting for the 2nd and 3rd Defendants after withdrawing for the 1st Defendant. The Plaintiffs were permitted to serve the amended Originating Summons by substituted service, effected in the Nation Newspaper on 29th August 2013. On the Affidavit of Service on record, the court was satisfied that service was duly effected and declined to set aside the ex parte proceedings.

p. 2

Legal principles established

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  • Where an Affidavit of Service on record establishes service of the Originating Summons, an application to set aside ex parte proceedings on the ground of non-service will fail.

Court orders

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  1. 1.The Application dated 14th November, 2017 is dismissed with costs
Jurisdiction invoked
Inherent powers of the court to set aside ex parte proceedings (civil procedure)

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, "Joseph Ndua Kioko & another v Munyao Kioko Kikeu & another [2018] KEELC 3093 (KLR)", Case Analysis (2018). Originating Summons dated 4th December, 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3093/eng@2018-05-25

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