Murunyu v Murunyu & 2 others (Environment & Land Case 30 of 2017)  KEELC 15440 (KLR) (20 December 2022) (Ruling)
Neutral citation:  KEELC 15440 (KLR)
Republic of Kenya
Environment & Land Case 30 of 2017
JG Kemei, J
December 20, 2022
Joseph Ndungu Murunyu
George Ngugi Murunyu
Eunice Mwende Murunyu
Beth Wanjiku Kirika
(FORMERLY KERUGOYA ELC NO 44 OF 2016)
1.The 3rd defendant/applicant filed the instant motion seeking orders that;a.The ex parte judgment entered on September 29, 2017 by Hon Lady Justice l Gacheru and all subsequent orders thereto be vacated/or set aside.b.The 3rd defendant/applicant be allowed to defend this suit as per the annexed statement of defence.c.Costs of the application be provided for.
2.The application is based on the grounds on the face of it and a detailed supporting affidavit of even date sworn by Beth Wanjiku Kirika, the applicant. She averred that she has never been served with any pleadings herein and only learnt about the suit when the plaintiff/respondent filed a replying affidavit annexing copy of the decree herein in Gatundu Succ Cause No 30 of 2011 – Estate of Murunyu Gatonye where the parties herein are all beneficiaries since they are siblings. Copy of the replying affidavit is annexed as BWK1. That accordingly the applicant through her advocates wrote to the Deputy Registrar of this court requesting for copies of pleadings in this case and learnt that the suit proceeded ex parte resulting in the orders issued on September 29, 2017. The applicant avowed that she has a strong defence that raises triable issues as shown by the draft defence – BWK3. She accused the plaintiff of illegally and unprocedurally transferring a portion of land measuring about 0.5ha forming part of land known as Ngenda/Kimunyu/1695 and thus disinheriting the applicant contrary to the copy of certificate of confirmation of grant marked BWK4a. That the respondent’s suit was based on his fraudulent acts as Ngenda/Kimunyu/1695 originally belonged to their late father, Murunyu Gatonye whose estate was solely administered by the respondent.
3.The application is opposed by the respondent/plaintiff, Joseph Ndungu Murunyu who swore his replying affidavit on August 17, 2022. He deposed that all the three defendants were properly served with summons to enter appearance but they failed to enter appearance prompting the respondent’s counsel to apply for interlocutory judgment against them. That the court upon being satisfied that the defendants were properly served, set down the matter for formal proof hearing on March 2, 2017 and a decree was issued. That the applicant deliberately refused to enter appearance herein despite being served and her application is an afterthought. The respondent admitted serving the applicant with a replying affidavit in the Gatundu Succession Cause No 30/2011 but pointed out that the applicant has not explained the delay from the time she learnt of this case and when she instructed her advocates to request for pleadings herein.
4.That indeed he was convicted in Gatundu Criminal Case No 169 of 2016 but later acquitted on appeal in Kiambu HCCA No 9 of 2019 whose copy of judgment is annexed as JNM3. The respondent maintained that the applicant is guilty of laches and has come to court with unclean hands and urged the court to dismiss the application with costs.
5.On September 29, 2021 directions were taken and parties agreed to canvass the application by way of written submissions. None of the parties complied with the directions.
6.The germane issue for determination is whether the judgment should be set aside.
7.Order 10 rule 11 of the Civil Procedure Rules empowers the court to set aside an ex parte judgment for default of appearance and defence.
8.Order 12 rule 7 of the Civil Procedure Rules provides that where under this order Judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just. Further the provision is buttressed by Order 51 rule 15 of the Civil Procedure Rules which provides that the court may set aside an order made ex parte.
9.The court’s power to set aside judgments is discretionary and must be exercised judiciously. The Court of Appeal in the celebrated case of Shah v Mbogo and Another  EA 116 held that:
10.In instances where the court is satisfied that proper service was not effected upon a defendant, then judgment would be set aside as a matter of right. This position as affirmed by the Court of Appeal in the case of Pithon Waweru Maina v Thuka Mugiria  eKLR.
11.The Court of Appeal in the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another  eKLR observed thus;
12.The gist of the application is non-service of the court pleadings on the applicant to accord her a chance to be heard during the trial. A perusal of the court record reveals that vide two affidavits of service sworn on April 26, 2016 and June 9, 2016 by David Kihaya Muraya all the defendants were personally served by the process server in the company of the plaintiff who identified them. That the 1st and 3rd defendants acknowledged service of the pleadings by signing copies of the documents but the 2nd defendant declined to sign. However, the two affidavits do not contain the duly served copies of pleadings to that end as deponed. It is trite that once a defendant alleges non-service of pleadings, the burden to prove otherwise rests upon the plaintiff. In this case the plaintiff has not fully discharged the said burden.
13.Ultimately, I find that the default judgment entered against the 3rd defendant was irregular for want of proper service of the pleadings upon him.
14.In the end the application is allowed as follows;a.The judgement entered on the September 29, 2017 be and is hereby set aside and or vacated.b.The 3rd defendant be allowed to defend this suit as per the annexed statement of defense.c.The 3rd defendant to file and serve the defense within 7 days from this ruling and thereafter parties to fix a pretrial conference in preparation of the hearing.d.Costs shall be in the cause.
DELIVERED, DATED AND SIGNED AT THIKA THIS 20TH DAY OF DECEMBER, 2022 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Mbiyu for Plaintiff/Respondent1st and 2nd Defendants – AbsentWanjiru Njehia HB Kamonjo for 3rd DefendantCourt Assistant – Phyllis / Kevin