KWAMBAI KIPKERING VS MICHAEL LIMO CHEPTARUS KWAMBAI KIPKERING VS MICHAEL LIMO CHEPTARUS

DIRECTIONS
1. By a notice of motion dated 4th July 2024, the defendant /applicant seeks to set aside the ex parte judgment delivered by this court on 15th March 2023 and all consequential orders thereto; leave to defend the case and leave to change his advocate from the firm of AGN Kamau to the firm of J.K Kiplagat & Co. Advocates.

2. The application is premised on the ground that his advocate on record, AGN Kamau, neither attended court for hearing of the case nor informed the applicant of the hearing, leading to judgment being issued against the applicant ex parte. According to the applicant, he only learnt about the judgment after the plaintiff’s advocate served him with the decree issued in this case.

3. The applicant has deponed that upon being issued with the decree, he sought the services of another advocate, J.K Kiplagat & Co. Advocates, who perused the court file and established that owing to none attendance of the applicant’s advocate on record, the case proceeded ex parte.

4. Explaining that he has a good defence to the case and that he stands to suffer irreparably if the ex parte judgment is executed against him, he will be evicted from the suit property yet he is the registered proprietor thereof and has been in occupation of the suit property for over 41 years; the applicant urges the court to grant him the orders sought.

5. The application is opposed by the plaintiff/respondent on the ground that the applicant has not offered any reason or sufficient cause for absence of his advocate in court.

6. Arguing that the absence of the defendant/applicant and/or his advocate in court is not a good reason for seeking/granting the orders sought, the plaintiff /respondent has deponed that the defendant/applicant had on numerous occasions been served with hearing notices by himself and/or his advocate but failed to attend court for hearing of his case.

7. It is the plaintiff/respondent’s case that it was the duty of the defendant/applicant to diligently follow up his case with his advocate. Contending that the defendant /applicant has not placed any material/evidence before court capable of showing that he was a diligent litigant, the plaintiff/respondent urges the court to dismiss the applicant’s application with costs to him.

8. Even though the defendant/applicant has not raised any issue concerning service of hearing notices to his advocate, arising from the plaintiff/respondent’s averment that the plaintiff/applicant was on numerous occasions served with hearing notices but failed to attend court, with a view of ascertaining that and considering that the issue of service is a critical factor to consider in determination of the application before court, I perused the court record and noted that the last time the defendant/applicant’s counsel attended court for hearing of the case, on 16th November 2005, a consent order was recorded in the following terms:-
“By consent the plaint in HCC No.72 of 2002 be deemed to be the plaint and the defence filed herein together with the plaint in Eldoret CMCC No.1383 of 1999 be deemed to be the defence and counterclaim...”

9. The court record, particularly the pleadings filed in Eldoret CMCC No.1383 of 1999 show that the defendant /applicant’s advocate’s address is P.O BOX 399, Eldoret. There is no copy of the defence filed in HCC of 2002 in the court file.

10. Whilst there is no indication that the defendant/applicant’s advocate notified the court of change of his address or filed any document in court showing that his address for service is P.O Box 10038-00100 Nairobi, the court record shows that on the various occasions the case was listed for hearing, service on the defendant/applicant’s advocate was effected through registered post to the defendant /applicant’s advocate’s last known address of service being P.O Box 10038-00100 Nairobi.

11. There were other occasions when service was served physically on the defendant/applicant’s advocates office in Nairobi. Some of those instances, for instance the service effected on 19th April 2021 was declined on the ground that the firm of AGN Kamau was not on record for the defendant in the matter. Moreover, there is no indication in the court record as to whether the plaintiff/respondent obtained leave of the court to effect service on the defendant/applicant through substituted service by way of registered service in lieu of personal service which takes precedence over all other forms of service.

12. I also note that on other occasions, service on the defendant/applicant’s advocate was effected electronically, through email to the defendant/applicant’s known email address. Whilst the later form of service is now accepted as a form of service, there is nothing in the court record to enable the court determine the basis upon which that form of service was used as there is no notification by the defendant/applicant that the email belongs to it.

13. The court record also indicates that on occasions when notices were served by the court to the parties, service to the defendant/applicant’s advocate was effected through P.O Box 10038-10100 Eldoret and P.O BOX 399 Eldoret casting doubt as to the address of service notified to court as being the address of service for the defendant/applicant.

14. In view of the foregoing, there are issues regarding service to the defendant/applicant’s advocate which the plaintiff/respondent’s advocate ought to clarify to enable this court to make an informed decision on whether or not there was proper service of hearing notices on the defendant/applicant or his advocate.

15. For the foregoing reason, I stay delivery of the ruling in this matter and direct the plaintiff/respondent’s advocate to, within seven (7) days from the date of issuance of these directions, furnish the court with an account/explanation of the circumstances and/or reasons why service was effected by substituted service and to the address and email purported to be that of the defendant/applicant advocate. In particular, the defendant/respondent’s advocate is required to furnish any notification to court and/or his office of the defendant/applicant advocate’s address of service and email address. The plaintiff/respondent should also clarify to court whether he obtained the leave of court to be effecting service on the defendant through registered service in lieu of personal service.

16. Orders accordingly.

Dated, signed and delivered at Iten this 15th day of January 2025.
Ruling delivered virtually in the presence of:-
Ms. Wahome holding brief for Ms. Odwa for the Plaintiff/ Respondent
Ms. Cherop holding brief for Mr. Kiplagat for the Defendant/Applicant
Court Assistant: Alex