[2020] KEHC 10064 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D. S. MAJANJA J.

CIVIL CASE NO. 10 OF 2012

BETWEEN

ATTA KENYA LIMITED.................................................................PLAINTIFF

AND

WONDERLOAF BAKERY LIMITED.......................................DEFENDANT

RULING

1. The application before the court is the Defendant’s Notice of Motion dated 2nd April 2020 made, inter alia, under Order 10 rule 11 of the Civil Procedure Rules seeking to set aside judgment in default of appearance and defence entered against it on 16th July 2013. The application is supported by the affidavit of Hillary Chepkwony Rotich, director of the Defendant, sworn on 2nd April 2020. Although the affidavit was not opposed despite service of the application, the Defendant has a duty establish its case for setting aside the judgment.

2. The Defendant states it was not served with the Plaint and Summons to Enter Appearance but from the record, the Plaintiff was served by substituted service through newspaper following grant of leave on 9th November 2012. According to the affidavit of service, the advertisement was placed in the Standard Newspaper of 14th November 2012. The judgment was therefore regular. It is however possible that the Defendant’s director did not see the advert or for some reason failed to enter appearance and file defence. He does not say anything about this in his deposition.

3. The foregoing notwithstanding, the court is entitled to consider whether there is an arguable or triable defence on record to warrant setting aside the judgment bearing in mind the dicta in Shah v Mbogo and Another[1967] EA 116 that:

The discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.

4. The Plaintiff’s case against the Defendant is for bakery flour supplied to the Defendant by the Plaintiff on credit terms. The Plaintiff claims Kshs. 10,025,200. 00 from the Defendant as due and owing as at 6th November 2006. It also claims interest at 25% p.a. The Plaintiff has attached to its witness statement invoices, delivery notes and statements of account which confirm that there was a contractual relationship between the parties and certain goods were delivered. The Defendant has not attached a draft defence to its application. Further, Mr Rotich has not explained in his deposition the nature of the defence the Defendant intends to proffer at the trial. The affidavit dwells on the manner and process of execution which is now moot. I however note that there is a claim for interest at 25% p.a. which is unjustified.

5. For the reasons I have stated, I will therefore set aside the judgment on terms. I allow the Notice of Motion dated 2nd April 2020 and orders as follows:

(a) The ex-parte judgment herein be and is hereby set aside on condition that the Defendant deposits the sum of Kshs. 1,000,000. 00 in court within the sixty (60) days from the date hereof.

(b) The Defendant shall file and serve its Statement of Defence within 14 days from the date hereof.

(c) In default of (a) and (b) above, the judgment shall stand reinstated and the Defendant be at liberty to proceed with execution.

(d) The Defendant shall pay thrown away cost of the application.

(e) This suit be and is hereby transferred to the Nairobi Magistrates Court, Milimani for hearing and disposal.

DATEDAND DELIVERED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2020.

D. S. MAJANJA

JUDGE

No appearance for Otieno Omuga and Ouma Advocates for the Plaintiff.

Ms Chepkoech instructed by Kandie Mutai Mudeizi and Company Advocates for the Defendant.