Nyaga v Muritu & 4 others (Environment and Land Case Civil Suit 56 of 2019) [2022] KEELC 3040 (KLR)

5. 2 That the costs of the application be in the cause. The said application is premised on the following grounds:A. That this suit is not one for liquated damages, neither is it one for pecuniary damages and therefore no interlocutory judgment could lawfully be entered in default of service of the summons to enter appearance. B. That the 2nd defendant has annexed a draft defence which raises triable issues C. That where the defendant shows a reasonable defence on merits, this will give this Court the chance to hear both sides thus should set the ex-parte judgment aside. D. That failure to file a defence required was not intentional as the plaintifi did forward the summons to enter appearance to the defendant and/or his advocate thus the defence was not filed. E. That the plaintifi will not sufier any prejudice should the 2nd defendant be allowed to defend the suit and this will give the court the chance to hear both sides and make an informed decision on merit. Applicant’s summary of facts 3 The Applicant in his supporting Afidavit made the following depositions; 1. That I am the 2nd defendant herein hence competent to swear this afidavit on behalf of the defendant. 2. That I am the registered owner of the parcel of land known as Kiine/sagana/4109 now sub-divided into Kiine/sagana/4640 and 4641 having purchased the same from the plaintifi through his wife, Wairimu Mwangi. 3. That copies of the plaint in this matter without summons to Enter Appearance were served upon me together with an application by the plaintifi for injunction dated December 19, 2019 and a copy of the order whereupon I instructed my Advocates on record to file the appropriate response. 4. That I am informed by my Advocates which information I truly belief to be true that the advocate filed a notice of Appointment of Advocates dated 6th February, 2020 5. That the matter was slated for inter parte hearing on the March 16, 2020 when the Chief Justice Maraga on or around the March 12, 2020 announced containment measures against the Covid-19 pandemic which had been reported in the country. The raft of measures announced by the Chief Justice at the time were for the immediate closure of physical attendance of the courts by the parties until further notice. 6. That as a result the matter did not proceed and we were later advised to file court documents and attend court through online portals provided therein 7. That the next time the matter was in court was on the 1st, 21st October and 17th November, 2020 as per hearing notices sent to my advocate on record for the inter parte hearing of the plaintifi’s application of 19th December, 2019. 8. That I am informed by my advocates on record information I verily belief to be true that they tried to file the Replying Afidavit to the Application through the online portal but they https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3040/eng@2022-05-06 2

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were not successful and the application proceeded ex-parte and the orders of injunction were confirmed by the court. 9. That later in the month of June 2021, the advocates informed me that they were served with a copy of the amended plaint by the plaintifi’s advocates through e-mail. 10. That the amended plaint served by the plaintifi did not accompany with the summons to enter Appearance was an issue that was brought to the attention of the counsel for the plaintifi who promised to look at the issue and also follow up on the issue of the summons to Enter Appearance (see annexed copy of the amended plaint and the summons attached herein). 11. That to date no summons to Enter Appearance has been served on my advocates and thus unable to file my defence on record. 12. That I truly believe that I am entitled to the summons to Enter Appearance before any adverse step is taken against me in this matter. 13. That the only summons to Enter Appearance received by my advocates is one for Charity Wanjiru and thus I could not act on it. 14. That I truly believe that I have a good defence as per the annexed statement of defence herein, which had raised triable issues and that if the matter proceeded on formal proof, I will have lost a chance to defend myself through no fault of my own. 15. That I am willing to abide by any conditions that the court would deem fit to grant. 16. That the application had been filed without undue delay, in good faith and with full disclosure and I urge this court to grant the same. 17. That I therefore make this afidavit in support of my application herein to strike out the plaintifi’s entire suit against me with costs. 18. That save where sources of information have been made what stated herein is true to the best of my knowledge and belief. Plaintifi/respondent’s summary of facts 4 The Plaintifi/Respondent in response filed a Replying Afidavit on 29th October, 2021 where he made the following depositions: 1. 5 That the 2nd defendant/Applicant’s application, the supporting afidavit and the annexures attached thereto are; a. Incompetent and bad in law b. A gross abuse of the court process c. Brought in bad faith and d. Unmeritorious. That I am the first registered owner of all that parcel of land known as Kiine/sagana/3103 which was later illegally and fraudulently subdivided into two (2) parcels of land being Kiine/sagana/4109 and Kiine/sagana/4110. Land parcel No. Kiine/sagana/4109 was further subdivided into two (2) parcels of land to wit land parcel No. Kiine/sagana/4640 and Kiine/sagana/4641. Land parcel No. Kiine/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3040/eng@2022-05-06 3

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sagana/4640 is registered in the name of the 2nd Defendant herein whereas land parcel No. Kiine/ sagana/4641 is registered in the name of the 3rd Defendant 6 That I commenced this suit vide a plaint dated 19/10/2021 and together with the plaint I filed a Notice of Motion application of even date under certificate of urgency. The application was heard ex-parte certified urgent and interim orders of injunction granted. 7 That I am informed by my advocates on record which information I believe to be true that on 17/01/2020 they served the 2nd Defendant with copies of the Notice of Motion application filed under certificate of urgency, plaint, list of witnesses, witness statements, list of documents all dated 19/12/2019 together with the summons to Enter Appearance and a court Order both dated 20/12/2019. The Defendant was served at his business premises known as Marula Poles Yard located at Makutano village along Sagana-Makutano Highway, Ndia District Kirinyaga County. Annexed herein and marked ‘A’ is a copy of the afidavit by the process server who efiected service. 8 That I am informed by my advocates on record which information I believe to be true that the 2nd defendant filed a Notice of Appointment of Advocate and later filed his Replying Afidavit dated 16th March, 2020 and filed on 19/10/2020 9 That I am further informed by my advocates on record which information I believe to be true that the 2nd Defendant has always been served with all the notices when the matter was coming up either for hearing or mention but the 2nd Defendant never appeared in court either in person or through his legal representatives. 10 That contrary to the allegations in paragraph 8 of the Supporting Afidavit, the Court by a Ruling delivered on 5th March 2021 allowed my application for injunction having taken the 2nd Defendant’s Replying afidavit dated 16th March 2020 into consideration. Annexed herein and marked ‘B’ is a copy of the said court ruling. 11 That the 2nd Defendant having been served with copies of the summons to Enter Appearance and having failed to Enter Appearance within the stipulated time, my advocates on record proceeded to request for judgment under order 10 rule 10 of the civil procedure Rules 2010 which interlocutory judgment was entered accordingly as I am advised by my advocates on record which advice I believe to be true. 12 That in the course of this case I got to learn that the 3rd defendant had passed away and I therefore moved the court vide an application dated December 16, 2020 seeking substitution of the 3rd Defendant with his legal representative. My application was allowed and my advocate on record proceeded to amend my pleadings, took out fresh summons in the name of Charity Wanjiku and efiected service upon her on 14/06/2021 as I am informed by my advocates on record which information, I believe to be true. Annexed herein and marked ‘C’ is a copy of the afidavit by the process server. 13 That I am informed by my advocates on record which information I believe to be true that they have never been contacted by the 2nd Defendant’s advocate on the issue of summons to enter Appearance being accompanied by the Amended plaint. 14 That I only Amended my plaint in order to bring in the 3rd Defendant’s legal representative into this case and the 3rd Defendant’s legal representatives were served with a copy of the same. 15 That in light of paragraph 6 above, the 2nd Defendant was duly served with the summons to enter Appearance but failed to file defence in time hence the interlocutory judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3040/eng@2022-05-06 4

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16 That the 2nd Defendant has not stated or given any reasons why his advocates never wrote any letter to mine asking to be served with copies of the summons to enter appearance before he filed the instant application yet he had knowledge of the existence of the instant suit. The 2nd defendant’s current application is therefore a mere afterthought. 17 That I have looked at the 2nd Defendant’s defence and I believe the same is; (a) A shame (b) Does not raise any triable issues (c) Full of denials 18 That Charity Wanjiru was duly served as enumerated in paragraph 11 above. The allegations that the 2nd defendant’s advocates were served with her summons are false because there is no receiving stamp from the said advocates acknowledging receipt of the same. Further, even if they were erroneously served with the said summons, they did not write to my advocates complaining about the same as am informed by my advocates on record which information I believe to be true. 19 That on October 15, 2021 my advocates inform me which information I believe to be true that they served the 2nd Defendant with copies of notice of entry of judgment and a formal proof hearing notice. Annexed herein and marked ‘D’ is a copy of the said notices. 20 That I honestly believe that it’s the above captured service that jolted the 2nd defendant from their slumber and they moved the court vide the application under consideration to delay the fair hearing of this matter 21 That when viewed wholly and cumulatively, the 2nd Defendant’s application militates against Sections 1A and 1B of the Civil Procedure Rules 2010 and the orders sought as I am advised by my advocates on record which advice I believe to be true. 22 That the 2nd Defendant is guilty of laches as he has failed to satisfactorily explain the reason for the delay in filing his application after an inordinately long delay in the circumstances. 23 That I verily believe that the application before court has been filed to serve its sole purpose of delaying the fair hearing of my suit. 24 That as demonstrated above, the 2nd Defendant has come to court with unclean hands and is therefore undeserving of exercise of this court’s discretion. 25 That the Defendants have been utilizing the suit properties whereas I have been kept away from the same. It’s only fair I be allowed to prosecute my suit without further delay because I am now an old man and the suit property was the crystallization of my labour and hard work for many years. 26 That it is in the interest of justice that the orders sought by the 2nd Defendant/Applicant are denied and I be allowed to prosecute my case. Legal Analysis And Decision 27 I have considered the application, the supporting Afidavit and Replying Afidavit as well as the annexures thereto. I have also considered the pleadings proceedings and the rival submissions as well as the applicable law. The Applicant has moved this Honourable Court under 10 Rules 4, 5, 6, 9 & 11 of the Civil Procedure Rules, seeking inter-alia that the interlocutory judgment entered against the 2nd defendant together with all consequential orders be set aside. The Applicant is also seeking an order https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3040/eng@2022-05-06 5

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for stay of proceedings and formal proof. The application is based on grounds shown on the face of the said application and the supporting afidavit of the Applicant. 28 At paragraph 3 of the supporting Afidavit, the Applicant stated that he was served with copies of a plaint, verifying afidavit, list of witnesses, witness statements, list of documents, a notice of motion application under certificate of urgency and a court order but no Summons to Enter Appearance. On February 6, 2020, the 2nd defendant/Applicant instructed the firm of Macharia Gakaria & Associates Advocates who filed a Notice of Appointment of Advocates dated the same date. From the court record, there are copies of Summons to Enter Appearance issued to the defendants including the 2nd Defendant/Applicant herein dated 20/12/2019. There is also an afidavit of service sworn by one process server namely, Simon G. Kamau. At paragraph 4 of the said afidavit of service, the process server deposed how he efiected service of Summons to enter Appearance and all court processes upon the 2nd Defendant herein. Those averments under oath have not been controverted. The 2nd defendant/ Applicant did not seek to cross-examine the said process server on the contents of the afidavit of service. 29 The Notice of Motion application which had been filed contemporaneously with the plaint and ostensibly served with the disputed Summons to enter Appearance was responded to by the 2nd Defendant by way of a replying Afidavit sworn on 16th March, 2020. If the 2nd Defendant/Applicant who was represented by an advocate had not been served with Summons to enter Appearance as he alleges, he should have asked to be supplied a copy by counsel for the plaintifi or better still, check from the court record. 30 I am indeed satisfied that the 2nd Defendant/Applicant, just like the rest of the other defendants were duly served with Summonses to enter appearance and other court processes as deposed by the process server through his afidavit of service which has not been challenged. 31 It is also to be noted that the 2nd defendant/Applicant in prayer NO. 2 of the application is seeking an order for setting aside an interlocutory judgment and all consequential orders entered against him. However, there is no indication when the purported interlocutory judgment and/or adverse orders were issued against the 2nd defendant/Applicant herein. 32 The only prayer worth considering in this application is whether the 2nd defendant/Applicant can be granted leave to file defence out of time. Though the 2nd Defendant/Applicant is seeking an order for setting aside an interlocutory judgment, He has not demonstrated when the purported interlocutory judgment was entered. The truth of the matter is that the dispute in this case is a claim for land which does not qualify for entry of interlocutory judgment where any of the defendants fail to either enter appearance or file defence. That explains why no interlocutory judgment was entered for the plaintifi through his letter of request dated 29/07/2021. Section 7 Rule 1 of the Civil Procedure Rules states as follows; “ Where a defendant has been served with a Summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintifi within fourteen days from the date of filing the defence and file an afidavit of service”. 33 The 2nd Defendant/Applicant in this case has not given suficient reasons why he failed to file his defence within the stipulated period. On my part, unless a party gives reasonable explanation for failing to comply with time lines given in law or directions given by the court, I have little or no sympathy at all. The court requires to balance the reasons given by the Applicant for failing to file his defence in time and his right to be heard. If the delay is deliberate and prolonged, the remedy is to reject such an application. Having carefully considered the facts and the explanation given by the 2nd Defendant/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3040/eng@2022-05-06 6

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Applicant, I find that denying the Applicant leave to file defence would be drastic. How, that does not mean he will go scot-free as if there has been no breach. 34 The upshot of my finding is that the Notice of Motion dated 11th October 2021 is allowed in the following terms: 1. The 2nd Defendant/Applicant to file and serve his Defence upon payment of thrown away costs of Kshs. 20,000 to the plaintifi within fourteen (14) days from today. 2. If the costs referred in paragraph (1) above are not paid as directed, the defence filed will stand struck out and the plaintifi will be at liberty to proceed with this case as an undefended suit. RULING READ, DELIVERED AND SIGNED IN THE OPEN COURT AT KERUGOYA THIS 6TH DAY OF MAY, 2022. .................................... HON. E.C. CHERONO ELC JUDGE In the presence of:Mr. Ndegwa for the Plaintifi/Respondent Respondents/Advocate – absent Kabuta – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3040/eng@2022-05-06 7

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