Case ID:169782

Samuel Lotiywo Murio v Daniel Tikoro & 2 others [2021] eKLR

Case Metadata

Case Number:

Environment And Land Case 74 of 2018

Parties:

Samuel Lotiywo Murio v Daniel Tikoro, Isaac Mariach Longarkaye & Lochaun Longarkaye

Date Delivered:

03 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Samuel Lotiywo Murio v Daniel Tikoro & 2 others [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application granted

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

ELC NO. 74 OF 2018

SAMUEL LOTIYWO MURIO.....................................................PLAINTIFF

VERSUS

DANIEL TIKORO............................................................1

ST

DEFENDANT

ISAAC MARIACH LONGARKAYE...........................2

ND

DEFENDANT

LOCHAUN LONGARKAYE........................................3

RD

DEFENDANT

RULING

The Application

1.

By a notice of motion dated

12/8/2020

and filed on

13/8/2020

brought under provisions of

Sections 3

and

3A

of the

Civil Procedure Act

and

Order 10 Rule 11

of the

Civil Procedure Rules

, the defendants seek the following orders:

(1) …spent

(2) …spent

(3) That the

ex-parte

judgment herein dated 3/10/2019, the decree and any other consequential orders in this suit be set aside.

(4) That leave be granted to the defendants to file a defence

(5) Costs of this application be provided for.

2.

The application is supported by the affidavit of the 3

rd

defendant sworn on

12/8/2020

.The 1

st

and 3

rd

defendants also filed supplementary affidavits both dated

5/11/2020

. The application is premised on the groundsthat the applicants were not served with plaint and summons and that the affidavit of service filed herein is fatally flawed; that the land

parcel No. 151

claimed by the plaintiff/respondent does not belong to him and that in any event the defendants do not reside thereon and that it is in the interests of justice that the

ex parte

judgment be set aside. The 2

nd

and 3

rd

applicants are said to reside on

plot No. 251

on the same group ranch land while the 1

st

defendant stays on

plot No. 706

on the same group ranch land. It is also alleged that no notice of entry of judgment was served on the defendants.

The Response

3.

The plaintiff filed a replying affidavit sworn on

16/10/2020

. The plaintiff’s response is that he has been living on the suit land since the

1980s

to date; that he was allocated the plot in

1988

;the applicants’ plot which they claim under their father’s name is No.

183

though they individually have other plots without numbers; that the applicants invaded his land in

2010

but were ordered to move to their father’s plot in vain by law enforcement agencies and the local administration; that the applicants were arrested and charged before the court at Kapenguria but fled the country and later reappeared in

2017

and began utilizing

100 acres

plus; that the application has been brought after inordinate delay of over one year and raises no substance. He claims that the applicants would not be prejudiced if the application was not granted as they claim not to be on the suit land. The respondent avers that no grounds for setting aside have been demonstrated and that the application is fatally defective for having been filed without leave of court.

The Applicants’ Rejoinder

4.

In response to the respondent’s claim the 1

st

applicant denies having been involved before elders in a dispute over land with the plaintiff while the 2

nd

applicant points out that the plaintiff’s main annexture to his reply shows that he is not listed as the owner of

plot No. 151.

The 2

nd

applicant also denies knowledge of any criminal proceedings or involvement of the defendants with the police.

Submissions

5.

The defendants filed their submissions on

23/11/2020.

I have perused the court record and found no submissions filed on behalf of the plaintiff.

Determination

6.

The main issue that arises in the instant application is whether the applicant is entitled to the orders of setting aside sought.

7.

Regarding non-service, the defendants poke holes in the affidavit of service of

Godfrey Masinde Sitati

sworn on the

27/8/2018

for not expressly stating that the plaintiff pointed out the defendants. In their view it is faulty for having stated that the plaintiff pointed out the home of the defendants. They allege that the affidavit does not state that they were pointed out to him and that he knew them at the time of service.

8.

In respect of the existence of a triable issue, the defendants aver that the matters they have raised disclose a triable issue and thus the

ex parte

judgment should be set aside.

9.

I have examined the affidavit of service that the applicants fault. They have omitted to concede that the same affidavit states that the process server met the 2

nd

and 3

rd

defendants at the home of the 2

nd

defendant, and that the process server went to the home of the 1

st

defendant adjacent to the 2

nd

defendant’s home and personally served him. The applicants did not even as much as try to have the process server summoned for cross-examination. In my view there is no fatal omission in the affidavit of service as drawn. I conclude that the applicants were served.

10.

This court has unfettered discretion to set aside

ex parte

judgment. It is on this basis that I will proceed to consider whether there are triable issues raised by the applicants. The main concern of the court is to do justice to the parties in any litigation where judgment has been entered. In

Patel v EA Cargo Handling Services Ltd [1974] EA 75

at

page 76

, the court held as follows:

“The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgment as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication.”

11.

Having regard to the above cited decision and upon a perusal of the record I do find that the matters in their supporting affidavit and the draft defence annexed to the application raise serious issues that deserve to proceed to trial, foremost being the allegation that neither they nor the plaintiff owns

plot No. 151

and whether they, being not in occupation of

plot No. 151

claimed by the plaintiff in the suit, do not deserve the decree against them in respect thereof. In this application the plaintiff has produced a list that is faulted by the defendants as having listed another person’s name against

plot No. 151

and this issue needs investigation to avert the possibility that orders issued in the interlocutory judgment may affect an innocent third party not named herein. In this court’s view it would not be proper for the administration of justice to retain the present decree and leave so many questions unanswered while the defendants have voluntarily appeared and demonstrated that much light can be shed on the relevant matters by way of oral evidence in a substantive trial so as to arrive at a just conclusion in the dispute on the merits.

12.

Consequently I find that the application dated

12/8/2020

by the defendants should be granted and I grant the same in terms of

Prayers Nos.(3)

and

(4)

thereof. The costs of the application shall be borne by the defendants.The defendants shall also bear the thrown away costs which I put at

Kshs.15,000/=

.In addition they shall file and serve their defence and all their necessary documents in compliance with the

Civil Procedure Rules

within

14 days

of this ruling. This suit shall be mentioned on

25/2/2021

for issuance of a hearing date.

It is so ordered.

Dated, signed

and

delivered

at

Kitale via electronic mail

on this

3

rd

day of

February, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.