[2022] KEHC 15816 (KLR)

Ayan Automobiles Ltd v Ojijo (Suing as the husband & Legal Representative for the Estate of Rosemary Amondi Aula) & another (Civil Appeal E018 of 2022) [2022] KEHC 15816 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15816 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Appeal E018 of 2022

J Wakiaga, J

December 1, 2022

Between

Ayan Automobiles Ltd

Appellant

and

Kennedy Ouma Ojijo (Suing as the husband & Legal Representative for the Estate of Rosemary Amondi Aula)

1st Respondent

Namu Shuttle Sacco

2nd Respondent

(Being an Appeal from the Ruling by Honourable C. Agade Ms S.P.M. delivered on the 30th day of March 2022 in SPMCC No. 70 of 2020, The Appellant herein being dissatisfied with the whole Ruling delivered on the 30th day of March, 2022 in the SPMCC No. 73 of 2021))

Judgment

1. By a plaint dated March 19, 2021 the Appellant sued the Respondents in respect of a road traffic accident which occurred on January 21, 2021 involving motor vehicle Registration No xxxx owned by the Respondent in which the deceased was travelling as passenger along Kangari-Kaharati Road.

2. It was pleaded that the said accident was occasioned by the negligence of the part of the appellant, servant, driver and/or Agent and as a result thereof, the deceased suffered fatal injuries thereby occasioning loss and damage to the respondents.

3. The Appellant failed to enter appearance and on April 29, 2021 interlocutory judgement was entered against the same and matter set down for formal proof and by a judgement thereon dated October 6, 2021 the Trial Court entered judgement for respondent for the sum of Kshs 2,062,350/= together with cost and interest thereon.

4. By a Notice Of Motion under Order 10 rule 11 of the Civil Procedures Rules 2010, Sections 1 (a), 1 (b), 3(a) and 63 of the Civil Procedure Act, the Appellant moved the court under certificate of urgency for stay of execution and setting aside of the interlocutory judgement herein with leave to the Appellant to defend the suit.

5. The said application was supported by the affidavit sworn by Mahmoud Esmail Abdalla, in which he deponed that he had sold the subject motor vehicle to one Zakayo Mariko Rugi on 17th September, and that on October 29, 2021 he was visited by Ndutumi Auctioneers in his office who proceeded to proclaim his property.

6. It was then that he learnt that the plaintiff/respondent had obtained judgement against the Appellant who had a good defence which raised triable issues to the claim.

7. It was deposed that at the time of the accident the motor vehicle was under the possession of the purchaser who had not been made a party to the proceedings for which they intend to join him as a third party and attached the draft defence thereto.

8. In response to the said application, Mr Oduor Odinga an Advocate for the Respondents sworn an affidavit in which he deponed that the annexed draft defence was a mere denial which did not raise any triable issues and should therefore be struck out.

9. It was contested that the Appellant who was duly served should have brought in the intended 3rd party at the right time and not at execution stage as the service was properly effected by one Evans Opiyo whose affidavit of service was annexed.

10. It was contended that they had as a matter of caution served the Insurers of the subject motor vehicle with all the pleadings and documents as an agent of the Appellant and therefore the application was extremely frivolous and a total waste of courts time and abuse of process.

11. By a ruling thereon dated March 31, 2022, the subject matter of this appeal, the Trial Court dismissed the said application on the ground that the Hire Purchase agreement relied upon served upon by the Appellant did not contain a date except for the period of hire being November 23, 2018 to September 23, 2020 outside the date of the accidents which was January 21, 2021 and that the motor vehicle remained in the name of the Appellant and therefore the issue of ownership was not a triable issue. She further concluded that there was delay in filing of the application and that the respondent shall suffer prejudice by undergoing a second trial.

12. Being dissatisfied with the said Ruling, the Appellant moved this court and raised the following grounds of Appeal;-a.The Learned Trial Magistrate erred in law an and in fact in dismissing the 2nd Defendant applicants application for setting aside the ex-parte Judgement dated April 22, 2021 without sufficient reasons.b.The Learned Trial Magistrate erred in law and infact by allocating itself powers to bring up extraneous issues not conversed at the hearing of the said application therefore arriving to a wrong decision.c.The Learned Trial Magistrate erred in law and infact by allocating itself powers to bring up extraneous issues not conversed at the hearing of the said application therefore arriving to a wrong decision.d.The Trial Magistrate erred in law and infact by ignoring the list of documents more especially the copy of the hire purchase agreement and the statement of payments by the intended third party to the Appellant therefore arriving at a wrong decision.e.The Trial Magistrate erred in law and infact by failing to establish that the intended Third party was the insured of the said motor vehicle at the material date of the said accident therefore arriving at a wrong decision.f.The Trial Magistrate erred in law and in fact in upholding the exparte judgement which was entered vide a request judgement dated April 19, 2021 without according parties an opportunity to be heard on merit.g.The Trial Magistrate ignored the evidence through the documents of both the sale agreement between the Appellant and the intended party therefore arriving at a wrong decision to the prejudice of the appellant herein.h.The Learned Trial Magistrate erred in law and in facts by being influenced by unknown issues therefore arriving at the decision to the prejudice of the appellant herein.i.The learned Trial Magistrate erred in law and infact by refusing to acceded to the composition by the Appellant of costs to the Respondent to give parties an opportunity to be heard as per the rules of natural justice therefore arriving at the decision which is prejudicial to the appellant as he has been condemned in heard.j.The learned Trial Magistrate erred in law and in Facts in failing to exercise his discretionally powers judiciously.k.The learned Trial Magistrate ignored documents accompanying the application to set aside the said ex-parte judgement especially the Hire Purchase agreement and arriving at erroneous ruling.l.The Trial Magistrate erred in law and infact by failing to apportion liability between the two defendants therefore arriving at erroneous decision in her judgement.m.The Trial Magistrate did not determine the issues of liability as ought to have been determined on its judgment the fact that there were two defendants.n.The Trial Magistrate did not determine or apportion liability as no determination was made as to who was liable.o.The Trial Court only determined what was to be paid to the plaintiff and failed to determine the extent of liability as per the Defendants making the judgement difficult to determine the extend of liability.p.The Trial Magistrate even after entry of judgement did not state clearly who was liable for the accident the fact that there were two defendants sued.

Submissions 13. Directions were issued that this appeal be heard by way of written submissions which were duly filed on behalf of the Appellant, it was submitted that the Trial Court erred in finding that the appellant had not brought forth any triable issue as defined in the case ofSaudi Arabian Airlines Corporation -vs- Premium Petroleum Co Ltd [2004] eKLR to the extent that it is not one which will succeed but one which should go for trial for adjudication.

14. It was contended that the Appellant had raised the issue of having sold the subject motor vehicle on hire purchase and that judgement should have been set a side on terms which were just as per Order 10 rule 11.

15. It was contended that the Trial Court erred in failing to address the issue of the intended third party and that the Court erred in allocating itself by bringing up extraneous issues as the chassis number and engine number provided in the sale agreement matched the one showed in the motor vehicle copy of records in support of which the case ofNancy Ayemba Ngaira -vs- Abdi Ali [2010] eKLR was submitted to the extent that indication of name shown on the certificate is not final proof that the sole owner is the person whose name is shown.

16. It was contended further that the police abstract produced by the Respondent did not indicate that Appellant was the one in possession of the said motor vehicle at the time of the accident and provided that it had been insured by Direct Line Insurance as per the terms of contract of hire purchase.

17. It was finally submitted that the Trial Court ought to have drawn a conclusion on who was liable and to what extent as was stated in Yakub Hussein Ganyo -vs- Auto Industries Ltd & Another (2020) eKLR.

18. On behalf of the Respondent it was submitted that the only issue for determination is whether the Appellant has satisfied this court on the grounds for setting aside the exparte judgement. It was submitted that the judgement was a regular one as both the Appellant and its insurers were aware of the proceedings as was stated in the case ofTrust Bank Ltd –vs- Ports Ways Stores Ltd.

19. It was stated that the decision whether or not to set aside a judgement, is a discretionary one which ought to be exercised judiciously as was stated in Shah –vs- Mbogo [1968] EA 93 and KVK[1993] eKLRand that the Trial court exercised its discrete correctly, in support of which Anne Wangu Mwangi –vs- Samson Muriti Murijai [2019] eKLR was tendered.

20. It was contended that the Appellant failed to convince the court if the reasons for failure to enter appearance or file defence within time in support of which the reference was made to Board of Management of St Augustine Secondary School -vs- Chambalil Trading Co Ltd [2021] eKLR.

Determination 21. As rightfully pointed out by the Respondent the only issue for determination is whether the Trial Court properly exercised its discretion in denying the Appellant the right to set aside the interlocutory judgement and to defend the suit, the issues of the judgement being a default judgement not disputed.

22. The law on the setting aside of an interlocutory judgement in Kenya as they say seems to be now settled in line with Several Auctioneers of the Superior Courts in Kenya and this Court may not re-invent the wheels of Justice by coming up with any new or emerging jurisprudence thereof starting with that Order 10 Rule 11, which gives the Court a hand and unfettered hand to set aside exparte judgement as follows;'When judgement has been entered under this order, the Court may set aside or vary such judgement and any consequential decree or order upon such terms as are just'. 23. The court in Mwala –vs- Kenya Bureau of standard [2001] 1EALR 148 had this to say on the issue;-'To all that I should add my own views that a distinction is to be drawn between a regular and unirregular exparte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debito justice for a court should never countenance an irregular judgment on its record.'

24. In the case of Tree Shade Motors Ltd –vs- DT Dobie Co Ltd CA 38 of 1998, the court stated that even if an expert judgement was lawfully entered, the court ought to look at draft defence to see if it contains a valid or reasonable defence.

25. This is an appeal against the exercise of court discretion and held in Shah -vs- Mbogo SSupra) the Court stated that the Court of Appeal should not interfere with the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected herself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice.

26. Being a first appeal I have looked at the Appellants affidavit in support, though the same he has not mentioned whether or not they were served, having raised the issue of having sold the subject motor vehicle to a third party and as supported by the Hire Purchase agreement, this to my mind is an issue which the Trial Court ought to have allowed to be interrogated further and not dismiss the same on the basis of a date contained therein.

27. I have further noted the defence which the Appeal had put forward before the Trial Court and I come to the considered view that it was apprehensible defence which the Trial Court should not just have dismissed on the basis that one ownership of the said motor vehicle was still in the name of the Appellant, the Court should have taken judicial notice of the fact that being a hire purchase agreement, the ownership if any would have only passed upon completion of the Hire Purchase Agreement.

28. Even if the judgement was regular as the court held the same still retained discretion to set it aside on terms which were just and not to use the fact that the Respondent will be prejudiced by undergoing a second trial when she could have compensated them by way of cost as therein is not trial which is an academic exercise.

29. It therefore follows that this Trial Court erred in exercise of her discretion and consequently set aside the Trial Court ruling appealed against by allowing the appeal herein and set aside the interlocutory judgement obtained against the Appellant.

30. I further grant the appellant leave same to file a defence out of time which defence should be filed and served within the period 7 (seven) days from the date herein and the matter to proceed for trial on its merits before any other magistrate other than Hon Agade.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 1STDAY OF DECEMBER 2022J. WAKIAGAJUDGEIn the presence of;-Carol Mutahi Court AssistantMr. Karanga for Osoro for AppellantMr. Odiebo for Oginya for Respondent