VERONICAH MWIKALI MUINDI VS KEVIN MUSEMBI MACKENZIE AND ANDREW MUTAVA MULWA

1. The application before me is dated 6/6/2024. 
2. It  is  brought   under order  51 rule  1, order  10 Rule  11,  order  22 Civil  Procedure Rule, Section  1A, 1B  &  3A of  the Civil  Procedure  Act  Cap  21. 
3. It  seeks   that  the  judgment  dated  5/4/2024  and  consequential  orders  be set aside  and the  2^nd defendant be  granted leave to defend the  suit.
4. The application is supported by the affidavit of the 2^nd defendant/applicant.
5. His grounds are that he was not served with summons to entered appearance; because the emails used to serve him, one was an email address he has not used for over 10 years, and the other one is not his. That the only document he received was sent on his WhatsApp messanger and that is how he learnt about this suit.
6. He has filed a draft defence, and annexed a sale agreement.
7. He contends inter alia that ;
8. That title number Makueni/Unoa/4307 measuring approximately 7.625 acres was registered in the name of the 1^st defendant in trust for himself and his sister Jackline Mumbua Mackenzie by way of transmission from the estate of their late father Mackenzie Musau as evidenced by the confirmation of grant issued in principal magistrates court Makueni Succession Cause number 21 of 2016.
9. The suit property is jointly owned between the 1^st defendant and his sister Jackline Mumbua Mackenzie and thus only  the undivided portion owned  by the 1^st defendant can be subjected to the provisions of the matrimonial property Act as between the plaintiff and the 1^st defendant. 
10. That the 2^nd defendant/applicant is an innocent purchaser for value having purchased that portion of the jointly owned property belonging to Jackline Mumbua Macknzie in October, 2020, took possession thereof and developed the said portion.
11. He contends further ;
12. That I a medical doctor by profession and well known to the firm of O.N Makau & Mulei Advocates who instituted this suit on behalf of the plaintiff having on numerous occasions from 2009 appeared in court as an expert witness for clients of the said firm and still have pending bills with the said firm which I have followed up with them from time to time.
13. That  from the demand letter received on WhatsApp messenger on 7^th May, 2024, it is evident that the plaintiff’s advocates have always had my cellphone contacts and could easily  have served me through the same medium or telephoned me to receive summons.
14. That I am informed by my advocate on record Mr. Dennis Mung’ata advocate, which information I verily believe as true that there is on record another affidavit of service sworn by one Ali Simba Kalii on 18^th July, 2023 which purports to have served me with Certificate of Urgency, Notice of Motion, Supporting Affidavit, Plaint, Verifying Affidavit, List of witnesses and witness statements electronically through email address andrewmulwa@gmail.com. The andrewmulwa@gmail.com is not mine and I did not receive the documents referred to in the affidavit of Ali Simba Kalii.
15. That failure to enter appearance and file defence was not deliberate but was rather occasioned by want of service.
16. That I have a very good defence on the merits and I am desirous of tendering the said defence upon grant of leave of the court.  I attach and mark “AMM 2” my draft defence.
17. That title number Makueni/Unoa/4307 measuring approximately 7.625 acres was registered in the name of the 1^st Defendant in trust for himself and his sister Jackline Mumbua Mackenzie by way of transmission from the estate of their late father  Mackenzie Musau as evidenced by  the  confirmation of grant issued in principal magistrates court Makueni Succession Cause Number 21 of 2016. I attach a copy of the confirmed grant marked “AMM3” ( emphasis mine)
18. That the said is a jointly owned property between the 1^st defendant and his sister Jackline Mumbua Macxenzie and thus I verily believe only the portion owned by the 1^st defendant can be subjected to the provisions of the matrimonial property Act as between the plaintiff and the 1^st defendant.
19. That by a sale agreement dated 21^st October, I purchased a portion of the title number Makueni/Unoa/4703 measuring four(4) acres from Jackline Mumbua Mackenzie being her share of the jointly owned property. The said portion was to be excised from the larger Makueni/Unoa/4307 and transferred to me leaving the balance of the property to the 1^st defendant in accordance with the objects of the confirmed grant. I attaché and mark “AMM 4” a copy of the sale agreement.
20. That the portion of the land subject of the sale agreement is not owned by the first defendant and thus I verily believe the same cannot be the subject matter of a suit under the Matrimonial Property Act
21. The application is opposed through the replying affidavit of the plaintiff/respondent. She depones inter alia;
22. That it is evident that the counsel representing the applicant is not properly on record since the firm of Gichuki Kivindyo & Associates  had  fled a notice of appointment representing both the applicant and the 1^st defendant. (Annexed  hereto and marked as “VMM1” is  a copy of the notice of appointment)
23. That regardless of the previous advocate filing the above mentioned notice of appointment, he has always failed to appear in court when the matter was slated to court.
24. That despite the said advocate having filed a notice of appointment, this honourable court still insisted that I needed to serve both the applicant and the 2^nd respondent in person.
25. That the said order was served upon both the applicant and the 2^nd respondent through their mobile numbers.  (Annexed hereto and marked as “VMM2” is a copy of the affidavit of service filed on 16^th October, 2023)
26. That the applicant cannot therefore purport to be unaware of the ongoing proceedings before this honourable court since he has been served several though his WhatsApp number being 0720…...
27. That I am advised by my advocates on record which advice I verily believe to be true that the applicant’s draft statement of defence has not raised any triable issues to be considered by this honourable court.
28. That during the proceedings in Makueni Succession cause number 21 of 2016 the said Jackline Mumbua Mackenzie relinquished her share in the subject suit property to the 2^nd respondent (Annexed  hereto and marked as “VMM 3” is a copy of the notice of motion dated 22/11/2016)
29. That one Jackline Mumbua  Macknzie had also sworn an affidavit on  24.10.2016 confirming that she  was  not interested to benefit  from the subject suit  property(Annexed hereto and marked as “VMM 4” is  a copy  of the3 affidavit)
30. That I verily advised by my advocates on record which advise I verily believe to be true that the applicant can only pursue his claim elsewhere since this court does not  have the jurisdiction to delve into the issues on the validity of the transaction.
31. That I am advised by my advocates on record which advice I verily believe to be true that on Alphonse Kyalo  Kasimu is duly registered as a process server and therefore all the  service he conducted was done in accordance with the provisions of the Civil Procedure Rules.(Annexed hereto and marked as “VMM 5” is a copy of his certificate)
32. The applicant filed a supplementary affidavit which leave of court and deponed inter alia:-
33. That having been shown exhibit marked “VMM 1” I confirm that I have never instructed the firm of Gichuki Kivindyo & Associates Advocates to represent me in this or any other matter.  I further confirm that I have never had any dealings with the said firm.
34. That I have perused the attached notice of appointment by the law firm of Gichuki Kivindyo & Associates Advocates and confirmed that the same does not disclose expressly the respondent they act for.
35. That I was never served with summons to enter appearance by WhatsApp as alleged in the replying affidavit of Veronica Mwikali Muindi.  For that reason, I verily believe that I am entitled to have judgment against me set aside as a matter of right.
36. That it is not true that Jackline Mumbua Mackenzie relinquished her claim and right to her father’s estate otherwise the certificate of confirmation of grant in Succession case No. 21 of 2021 would not have listed her as a beneficiary. 
37. Parties filed submissions in support of their variant positions. 
38. For the applicant the  submissions addressed  the issue – whether or not he was served  with  Summons to enter appearance; that  if as alleged by the respondent that she served  through WhatsApp  them  it  was without leave  of  court as is required by Rule  8(5) of the Matrimonial  Property  Rules, 2022.
39. He  relies on
40. James Kanyiita Nderitu & Another  Vs  Marion Philotas Ghikas & Another [2016] KECA470(KLR)  where it was stated

“In irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiciae, as a matter of right…”

1. Mbogo V Shah [1968] EA 93 on the court’s  discretion to act in the interest of justice.
2. Wachira Karani Vs Bildad Wachira [2016] KEHC 6334(KLR) for the proposition that a litigant should not bear the brunt of his advocate’s mistakes - unless the litigant is privy to the default by his counsel.
3. Bolpak Trading Company Ltd Vs SMM Alias SM alias MM(minor suing thro his father & next friend)[2023]KEHC 25085(KLR) for the proposition that;

“… Courts exists not only to ensure rule of law but also to ensure just outcomes in disputes. It is  my considered view that failure by counsel to appear in court as and when required could have been punished by way of costs, and he  be given a chance to present his client’s case.”

1. Babs Security  Services  Ltd Vs Mwarua Yawa Nzao & 19 others [2019] eKLRfor  the rational for  proper service of summons  to enter appearance  - in  that it goes to the root of the right  to be heard.
2. The respondent submits that  there are  four  issues  to  be  determined as per  Mohamed & Anor Vs  Shoka (1990)  KLR 463
3. Whether  there  was regular judgment
4. Whether  there is a defence  on merit
5. Whether   there is a reasonable  explanation for any delay
6. Whether  there would  be any prejudice
7. It is submitted that there was a regular judgment, and affidavits of service were filed.
8. That the same mobile phone number  that was used  for WhatsApp Messenger  was the  same  that was used to  serve the final order of this  court  that  provoked  this  application.

Hence – service has  merely  been denied  but  it  was properly effected .

See

• 1. Equity Bank Ltd  Vs  Ali  Kuli  Hassan; 3 others  HCC No. 302/2022
  2. Ecodeng  Limited vs  Walter  Edwin Ominde :  Grace  Sellina Ominde ELC  E350 of  2022

1. That  there   was proper  service  but  the applicant   has  not   explained  why  he  never  came  to court  earlier   -  suit was filed in 2023, 19^th May, finalized  in 2024, 5^th  April -  that  authorities abide  that the court has discretion to set aside  an exparte judgment -  but  only to avoid injustice/excusable error.
2. It is submitted that the draft defence does not raise any triable issue.
3. It is further submitted that the firm of Gichuhi Mung’ata  &  Co.  Company is not properly on record as the firm of Gichuhi Kivindyo & Co. Advocates were on record for both respondents including the applicant.
4. I have carefully considered the application, affidavit, annexures and the   rival submissions. Does the application have merit?
5. In the matter leading to the Judgment that the applicant wishes to appeal from the applicant was sued for the reason that the plaintiff had learnt that her spouse had sold the parcel of land registered in his name to the applicant without spousal consent. That the applicant had proceeded to fence of that parcel of land depriving the plaintiff the exercise of her rights as the spouse of the 1^st defendant.
6. The record shows that the defendants were served through counsel but this court proceeded to insist that the applicant and his co defendant be served personally. This was done.
7. It is not denied that the same number that the applicant was served through is the same one through which he received the orders that prompted this application. Hence even though he may not have received the email service, he received the WhatsApp Messenger Service.
8. The applicants case is based on the mistaken understanding that the judgment delivered on 5/4/2025 was for the whole  portion of  the  inheritance from the  estate of the 1^st defendant’s  grandfather.
9. In my judgment  I stated as follows;

I have   carefully considered the facts before me.  The only issue is whether Makueni/Unoa/4307 is matrimonial property.  The evidence before me is that it was acquired through inheritance from the 1^st defendant’s grandfather in Makueni PM Succession  Cause  21/2016 -  Estate  of late Mackenzie Musau (deceased)  where  the 1^st defendant  and on JMM -  inherited  7.625 acres from Makueni/Unoa/244 as per   the certificate of  confirmation of grant  dated 9^th November,2016. The 1^st Defendant was issued with a title deed on 2/10/2017 for  3.08 Acres-  LR Makueni/Unoa/4307.

I made the order:

A declaration that the property LR Makueni/Unoa/4307 is matrimonial property.

1. In view of that – it is evident that the matrimonial  property is  what the 1^st  defendant  was entitled to inherit in  the  succession cause  and to  that end.
2. The applicant wishes to pursue the sale agreement he alleges he entered into with the sister of the respondent, regarding her inheritance and her share of the inherited property. That sister is not a party to this matter. This court made it clear that what was declared matrimonial property is what the respondent’s spouse had purported to sell without his spouse’s consent. Any issue related to how the inheritance was to be shared, which portion the applicant bought would not be an issue for determination before this court.
3. Issues of sale, ownership of land belong to a different court and the issues therein would require the seller(s). That person is not a party to this case.
4. The applicant cannot pursue his proprietary rights before this court- he can only do so – before the court that  will determine  between the applicant  and  the respondent’s  husband who owns  which part of the parcel of land.
5. Even if the applicant would have proceeded before this court, this could would not have determined his proprietary rights. This court’s jurisdiction was to determine on the facts whether the property was matrimonial property or not. The court made that finding. That specific finding is clearly stated in the Judgment.
6. In the circumstances, I find that the application is not merited and the same is dismissed with costs.

Dated, signed and delivered via CTS this 5^th May 2025

Mumbua T Matheka

Judge

CA Chrispol

Mr. Mung’ata for applicant

Ms. Kyalo for respondent