REPUBLIC OF KENYA

AT NYERI

CIVIL CASE NO. 18 OF 2009

VERSUS

RULING

The summons is supported by the affidavit and a supplementary affidavit of John Legei Leseneiyia. Erastus Muraguri Muriuki the 7^th Plaintiff/Respondent herein filed a replying affidavit and a further affidavit he swore to oppose the summons. When the summons came up for interpartes hearing, the Defendants abandoned prayers 7, 8 and 10.

        I have considered the grounds set out on the face of the summons and the facts deponed in the affidavits filed for and against the summons.    I have further considered the oral submissions of learned counsels from both sides. The Defendants/Applicants applied for the judgment to be set aside because there was no proper service. The Defendants alleged that they came to know of the existence of the eviction orders when they attended the District Commissioner’s baraza. They pointed out various inconsistencies in the affidavits of service for example the 7^th Defendant is named twice as defendant No. 7 and No. 35. The process server says he served the 7^th Defendant at home whereas he was unable to serve the 35^th Defendant. The Applicants further pointed out that most of the pleadings were not personally served upon the Defendants but were left with their wives. Accordingly, it is said that the interlocutory judgment was irregularly entered. The Applicants also complained that since there was no liquidated claim against the Defendants then the interlocutory judgment was irregular under order IXA rules 3, 4, 5 and 6 of the Civil Procedure Rules. The Defendants further challenged the pleadings filed and verified by the affidavit of Richard Kamau (1^st Plaintiff) on the basis that he  did not obtain nor filed a written authority from the other plaintiffs to authorize him to plead on their behalf under Order I rule 12 of the Civil Procedure Rules. Those submissions applied to the replying affidavits of Erastus Muraguri Muriuki. The defendants argued that they have raised triable issues in the draft defences. It is the submission of the defendants that they have shown a prima facie case with high chances of success which entitles the Defendants an order for interlocutory injunction.

        The Plaintiffs on their part urged this court to dismiss the summons since the affidavits of service on each defendant showed that the plaints and the summonses were properly served on each defendant. The plaintiffs further pointed out that under order V rule 5 of the Civil Procedure Rules there was a provision for entry of interlocutory judgment in default of defence.

        Having  considered the material placed before me and the oral submissions presented to this court, there is no doubt that the Deputy Registrar entered interlocutory judgment in default of appearance and defence on 11^th June 2009. There is also no dispute that the suit proceeded for hearing as a formal proof on 25^th June 2009. The Defendants have now come to this court seeking for an order to set aside the interlocutory judgment on the basis that there was no proper service of process effected upon them. It is also said that the law did not provide for an interlocutory judgment in default of appearance where there is no liquidated demand. As far as I am concerned the serious question to be determined by this court is whether or not there was proper service. I have carefully perused each of the affidavits of service sworn by Julius Kariuki Mundia. He depones that he served the plaints and the summonses upon the defendants on 21^st May 2009. He averred that he effected service while in company of Richard Mwangi Kamau. A critically look at those affidavits of service will reveal that the process server alleges that he effected service upon the Defendants either personally or by affixing the same on their premises or by leaving those documents with the Defendants wives or relatives. It is important to note that though the process server stated he was in company of the Plaintiff, there is no averment made in those affidavits whether or not the plaintiff knew any of the defendants by name nor whether he knew their wives nor their homes. The names of wives or relatives allegedly served were not given. In cases of those whom the process server alleges he personally served, there is no averment from the process server nor the plaintiff that any of them personally knew the said defendants physically or by name. After anxiously considering the issues raised on service I am convinced that there was no proper service effected upon all the defendants. I am therefore satisfied that the Deputy Registrar improperly entered an interlocutory judgment in default of an appearance and defence whereas there was no cogent evidence of service of processes. There is no note by the Deputy Registrar that he perused the affidavits of service. It would appear the Deputy Registrar mechanically entered judgment in default of appearance and defence without first satisfying himself that there was proper service of processes upon the Defendants. Where it is shown that there was no proper service, then any judgment given as a result of a default of appearance and or defence must be vacated because the same is treated as having been irregularly procured. In the circumstances of this case, the exparte proceedings in favour of a formal proof which gave rise to the judgment of this court delivered on 16^th September 2009 must be set aside. In such a case the Defendants must be given unconditional leave to defend the suit. I have also perused the draft defence and I am convinced the same raises triable issues hence the defendants should be heard.

        In the final analysis I allow the summons dated 15^th November 2009 in terms of prayers, 4, 5, 6,  and 11.

JUDGE