Case ID:171726

Elephant Oils Mills v Stephen Njenga Njoroge & 5 others [2021] eKLR

Case Metadata

Case Number:

Environmental and Land Case 212 of 2015

Parties:

Elephant Oils Mills v Stephen Njenga Njoroge, Mavji Karsan Hirani, Mwanalima Mwinyikai, Salim Ali Nyawa, Kwale County Land Registrar & Attorney General

Date Delivered:

03 Mar 2021

Case Class:

Civil

Court:

Environment and Land Court at Mombasa

Case Action:

Ruling

Judge(s):

Charles Kimutai Yano

Citation:

Elephant Oils Mills v Stephen Njenga Njoroge & 5 others [2021] eKLR

Court Division:

Environment and Land

County:

Mombasa

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 ENVIRONMENTAL AND LAND COURT AT MOMBASA

ELC NUMBER 212 OF 2015

ELEPHANT OILS MILLS........................................................PLAINTIFF

VERSUS

STEPHEN NJENGA NJOROGE....................................1

ST

DEFENDANT

MAVJI KARSAN HIRANI..............................................2

ND

DEFENDANT

MWANALIMA MWINYIKAI........................................3

RD

DEFENDANT

SALIM ALI NYAWA........................................................4

TH

DEFENDANT

KWALE COUNTY LAND REGISTRAR......................5

TH

DEFENDANT

ATTORNEY GENERAL.................................................6

TH

DEFENDANT

RULING

1. This is a ruling in respect to the application dated 24

th

August 2020 by the 3

rd

and 4

th

defendants and supported by the affidavit of Joyce Chesaro, that sought the following orders:-

a) That this honorable court be pleased to grant leave to the 3

rd

and 4

th

defendants to serve the summons to enter appearance and amended written statement of defence and counterclaim upon the 1

st

defendant herein by way of substituted service.

b) That there be reissue of summons to enter appearance to the amended written statement of defence and counterclaim for service upon the 1

st

defendant.

c) That the said summons and amended written statement of defence and counterclaim to be served upon the 1

st

defendant by way sending by registered post to his last known postal address being P.O BOX 7578 Nairobi and advertising through the daily newspaper preferably Standard newspaper and/or affixing the same attached with a copy of the amended written statement of defence and counterclaim on the notice board of Mombasa Law Courts Land and Environment Civil Registry.

d) That costs of this application be provided for.

2. The 3

rd

and 4

th

defendants who are the applicants here in, filed an amended statement of defence and counterclaim dated 24

th

January 2020. They sought the services of a process server to effect service on the 1

st

defendant. That the said process server has been unable to trace the 1

st

defendant and the applicants adduced evidence to prove non service on the 1

st

defendant.

3. The plaintiff filed grounds of opposition dated 15

th

September 2020 in opposing the application. That the amended statement of defence and counterclaim had been filed out of time and without leave of court. More so the amended defence and counterclaim is irregular, defective and it’s against the plaintiff only and not against the 1

st

defendant. The grounds further adduced that the 1

st

defendant had already been served with summons to enter appearance with the amended plaint by the plaintiff as directed by this court.

4. The 2

nd

defendant filed a notice of preliminary objection and a replying affidavit both dated 17

th

September 2020 in opposing the application. The 2

nd

defendant opposed the application on the grounds that; there is no provision in law for the applicants to issue summons in respect to the counterclaim, that the claim the applicants have against the 1

st

defendant can be raised in a separate action without prejudicing the other parties.

5. That the applicants responded to the 2

nd

defendant’s replying affidavit vide a supplementary affidavit sworn by the 3

rd

defendant as well as a response to notice of preliminary objection. The applicants stated that the plaintiff is the one who filed an amended plaint and served the applicants. That the applicants are entitled by law to also amend their defence if they so wish including the 1

st

defendant. That the plaintiff has not stated reasons why the 1

st

defendant should not be served with the amended defence and counterclaim.

6. The 5

th

and 6

th

defendants did not oppose the application.

7. The application was canvassed by way of written submissions. The plaintiff filed its written submissions on 4

th

November 2021. The plaintiff submitted to court that the application is an abuse of court process and it should be struck out. That the plaintiff already served the 1

st

defendant by way of substituted service provided by Order 5 of the Civil Procedure Rules but he has failed to enter appearance. That Order 5 does not provide for Summons to enter appearance to issue with a Counterclaim. That the amended defence and counterclaim has been filed without leave of court and default judgement has already been entered against the 1

st

defendant.

8. The applicants filed their written submissions on 24

th

November 2020 and submitted that the 1

st

defendant is a party to the suit and has a legal right to be heard and failure to serve him will shut him out of the hearing. That the defence and counterclaim filed on 9

th

June 2017 couldn’t be served upon the 1

st

defendant has his whereabouts were unknown. That the court ought to grant the orders sought in the application. The applicants relied on the following authorities;

i. ELC No 12 of 2014 Kaniki Ndathi V John Njuki and 10 others

ii. HCCC No 107 of 2011 Simon Gichangi Mugo V Dr Pierre Asabi and 2 others.

9. I have considered the application, the notice of preliminary objection, replying affidavit in opposing it and the response to the same as well as the submissions in support and the submissions opposing the same and I have this issue to determine;

Whether leave should be granted to the 3

rd

and 4

th

to serve the 1

st

defendant with their amended defence and counterclaim by way of substituted service.

10. The law on amendment of pleadings is provided by Order 8 of the Civil Procedure Rules. Rule 2 provides a defendant with the right to amend his defence after being served with an amended plaint. It has not been disputed by the plaintiff that it filed an amended plaint on 2

nd

October 2019. The amendment triggered Order 8 which in turn led to the 3

rd

and 4

th

defendants to file their amended defence and counterclaim on 4

th

February 2020.

11. Order 5 Rule 17 (1) of the Civil Procedure Rules 2010 provides for the law on substituted service. The law allows Court to grant leave to a party to serve by substituted service if it’s satisfied that for any reason the summons cannot be served in accordance to the Order 5. Sub rule 4 provides substituted service by advertisement as prayed for herein by the applicants.

12. This court on 13

th

October 2015 granted the plaintiff leave to serve summons to the 1

st

, 2

nd

, 3

rd

and 4

th

defendants by advertisement in one local daily newspaper and such substituted service which shall be deemed as proper service. The plaintiff went ahead to place an advert on the Daily Nation on 12

th

April 2016 and filed an affidavit of service to that effect.

13. The plaintiff has not disputed in court that it has benefited from the same process that the 3

rd

and 4

th

defendants are praying for. The plaintiff was granted orders to serve the defendants by way of substituted service. It’s in the interest of justice that the applicants be granted the same prayers too.

14. In the interest of justice and for court to determine all the issues herein, the 1

st

defendant should be served with the 3

rd

and 4

th

defendants’ amended defence and counterclaim. The 1

st

defendant despite not entering appearance and having interlocutory judgement entered against him, he has a right to be served with the amended pleadings.

15. The 3

rd

and 4

th

defendants filed an affidavit of service dated 12

th

October 2020 confirming that service had been effected on the defendants with the exception of the 1

st

defendant. They also filed an affidavit non-service dated 6

th

February 2020. The affidavit states that the process server could not locate the 1

st

defendant to effect service on him. That the efforts to trace the 1

st

defendant for service on the amended defence and counterclaim had been futile.

16. Order 5 rule 1 provides for the issuance of summons to a defendant to enter appearance and file defence. Summons have already been issued to all defendants herein including the 1

st

defendant by the plaintiff. The counterclaim in the amended defence is towards the plaintiff and not the 1

st

defendant.

17. Order 5 Rule 3 states that every summons shall be accompanied by a plaint. The rules are silent on summons accompanying a counterclaim, however the power to issue summons extends to reissuing. Therefore, there is nothing that stops this court from exercising its discretion to reissue summons. Nonetheless, the applicants on a balance of probabilities have not proved to this court why it should reissue summons to accompany a counterclaim.

18. I find the application dated 24

th

August 2020 to have merit and I allow it to the following extent:-

a) The applicants are granted leave to serve upon the 1

st

defendant with the amended defence and counterclaim dated 24

th

January 2020 way of substituted service by advertising in one local daily newspaper with national wide circulation.

b) Cost shall be in the cause

.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 3RD DAY OF MARCH, 2021

____________

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant

C.K. YANO

JUDGE