[2022] KEHC 344 (KLR)

Board of Management Thika Technical Training Institute v Grace Wairimu Mukundi (suing as the Personal Representative of the estate of Elias Mukundi Wambugu (Deceased) t/a Emu Enterprises (Civil Appeal 205 of 2019) [2022] KEHC 344 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 344 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 205 of 2019

MM Kasango, J

May 5, 2022

Between

Board of Management Thika Technical Training Institute

Appellant

and

Grace Wairimu Mukundi (suing as the Personal Representative of the estate of Elias Mukundi Wambugu (Deceased) t/a Emu Enterprises

Respondent

(Being an appeal from the Ruling and Order of the Chief Magistrate’s Court at Thika (Hon. M. Wanjala, SRM) dated 28th November, 2019 in Thika Civil Case No. 345 of 2019)

Judgment

1. The respondent filed a suit on behalf of the estate of her husband before the Thika Chief Magistrate’s Court claiming the appellant owed her deceased husband Kshs.8,808,582. On 19th July, 2019, judgment was entered in that case for the respondent in default of appellant filing an appearance and a defence. The appellant filed an application before the Thika Court dated 25th September, 2019 seeking to set aside the default judgment and for the enlargement of time within which to file a defence out of time.

2. The application was considered by the trial court on the basis of the affidavit evidence and written submissions. The trial court by its Ruling dated 28th November, 2019 dismissed the application. This appeal is against that dismissal of that application.

3. The jurisprudence in respect to applications to set aside default judgment requires a distinction be drawn between default judgment that is regularly entered and the one which is irregularly entered. In the case of regularly entered judgment in the James Kanyita Nderitu v Maries Philotas Ghika & another(2016) eKLR, the Court of Appeal stated thus:-“In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearances or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such as the reason for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer

4. Further, in that case, James Kanyita (supra) the Court of Appeal had this to say on irregularly entered default judgment:-“In an irregular 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. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular, it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue.

5. In this appeal, the appellant in seeking to set aside the default judgment deponed through the affidavit of the appellant’s principal, one Sammy K. Cheruiyot, that the appellant was served with the plaint and summons to enter an appearance on 12th June, 2019. That service was upon “The Institute’s Secretary”.

6. The trial court by its ruling determined the appellant’s application in exercise of its discretion. In the case CMC Holding Ltd v James Mumo Nzioki (2004) eKLR it was stated as follows on how the appellate court ought to deal with an appeal where the discretion of the court is questioned“We are fully aware that in an application before a court to set aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law and there are many decided cases in support of the proposition. One such authority is that of Magunga General Stores v Pepco Distributors[1987] 2 KAR 89 to which we were referred and in which this Court stated as follows:-‘The Court on an appeal will not interfere with the exercise of a discretion on an application for summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts.’”

7. The appellant based its prayers to set aside default judgment and for leave to file an appeal out of time on the grounds that the service of the summons and plaint was effected upon the Principal’s Secretary during a time the said Secretary was unwell and was often not on duty due to illness; that, that Secretary was admitted at the hospital from 28th August to 2nd September, 2019; and that the entry of default judgment was brought to the attention of the principal on 11th September, 2019 when the appellant’s goods were proclaimed by the auctioneer. The Principal by his affidavit stated that there was an inadvertent mistake on the part of his Secretary in failing to draw his attention to the summons and plaint.

8. The Principal attached to his affidavit the appellant’s draft defence.

9. The respondent by her replying affidavit dated 2nd October, 2019 stated that the documentation showing the Secretary was unwell were of a period after the summons and plaint were served. Further, that the draft defence was of mere denials. Also, that the appellant issued in favour of the respondent two cheques dated 23rd September, 2019 for Kshs.674,039. 20 and Kshs.700,000. On that basis, the respondent deponed that the appellant cannot be heard to claim that it never awarded a contract to the respondent.

10. In the appellant’s further affidavit dated 23rd October, 2019, the Principal denied knowledge of the notice of entry of judgment served by the respondent. The Principal further denied appellant’s indebtedness to the respondent and that because the defence raised triable issues, the Principal prayed the appellant be granted a chance to defend the action.

Analysis and Determination 11. The appellant by the Memorandum of Appeal was aggrieved with the trial court’s finding and seeks determination of the grounds of appeal that:-a.The trial court erred in not affording it an opportunity to be heard.b.The trial court erred to consider the grounds advanced by it on its failure to file the defence in time, that there was inadvertent excusable mistake.c.The trial court failed to consider that appellant had made part payment towards the debt.d.The trial court erred to shift burden of proof.e.The trial court failed to find the draft defence raised triable issues.

12. I intend to consider those grounds by interrogating the following issues:-a.Who bore the burden of proof in respect to the application?b.Did the trial court consider the correct principles for an application to set aside default judgment?c.Did the trial court err in not taking into account the part payment of the debt by the appellant?

13. The first issue above arose from the appellant’s grounds of appeal where the appellant stated that the trial court erred in shifting the burden of proof onto the appellant.

14. The Black’s Law Dictionary defines burden of proof as:-“A party’s duty to prove a disputed assertion or charge; a proposition regarding which of two contending litigants loses when there is no evidence on a question…”

15. It is useful to consider Section 107 and 109 of The Evidence Act. Section 107(1) of the Evidence Act provides as follows:-“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.Sections 109 of The Evidence Act provides:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

16. The appellant bore the burden to prove that it was entitled to benefit from the exercise of the discretion stated under Order 10 Rule 11 of the Civil Procedure Rules. The Rule provides:“Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

17. Based on the foregoing, the trial court did not err in requiring the appellant to prove its claim.

18. What was the appellant’s claim?By the notice of motion application, the appellant sought the setting aside of default judgment and for leave to file its defence out of time. The appellant relied on one single ground, that is, the service of summons and plaint was effected on the Principle’s Secretary who was sickly. She however was not named in the affidavit in support of the application. There was attached to that affidavit a memo written by the principal to Grace Waithera. It perhaps can be assumed, since it was not categorical stated in the affidavit that, Grace Waithera was the mentioned Principal’s Secretary. That memo states as follows:-“THIKA TECHNICAL TRAINING INSTITUTEFROM: THE PRINCIPALTO: GRACE WAITHERADATED: 14TH JUNE 2019RE: SICK OFFThis is to inform you that you have been granted sick off on 14thJune 2019. Wishing you a quick recovery.Thank you.SIGNEDSammy K. CheruiyotPRINCIPAL/SECRETARY BoGCC BoG Chair”

19. There was also attached to the affidavit a medical report of Kenol Hospital indicating Grace Waithera was admitted at that hospital from 28th August to 2nd September, 2019.

20. The deposition of the Principal in his affidavit that the Secretary was unwell was hearsay evidence which is against the provisions of Order 19 Rule 3(1) which provides:-“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove.”

21. It was necessary for the Secretary to confirm that she received the summons and plaint but failed to bring them to the attention of the Principal because she was ailing. There were no such depositions by that Secretary.

22. The service on the appellant of the summons and plaint was evidenced by the affidavit of service was on 6th June. That affidavit of service attached a copy of the plaint which was stamped with appellant’s stamp with the date 6th June, 2019. The appellant did not deny that the stamp belonged to it. The question then that arises is, if indeed service was on 6th June, 2019, what relevance is the memo reproduced above, which gave the Secretary off duty on 14th June and also the medical report of Kenol Hospital which indicated the Secretary was admitted at that Hospital from 28th August, to 2nd September, 2019. The appellant had a burden to prove that there were intervening circumstances or error or mistake which prevented the filing of its appearance and defence having been served with the summons and plaint on 6th June, 2019. I wholly concur with the discussion of the trial magistrate in the Ruling dated 28th November, 2019, which is the subject of this appeal as follows:-“In this case, the applicant admits to having been served with the summons to enter appearance. The said summons were served upon the Principal’s secretary whom, it’s alleged did not bring it to the attention of the Principal on time. The Principal said that the only became aware of the case herein on 11th September, when he was served with warrants of attachment. His affidavit states that the secretary was unwell and was “on and off” duty. However, the documents attached only show that the said secretary only took one sick off for the 14th June, 2019. The documents also show she only attended hospital once when she was admitted at Kenol Hospital between 28th august, 2019 and 2nd September, 2019. Apparently, the medical report form Kenol Hospital is undated and only bears a stamp of 17th September, 2019, a time when the Principal had already become aware of the proceedings herein. The possibility o the said medical report having been acquired solely for the purposes of advancing a narrative that supports the application herein cannot be ruled out.Be it as it may, the said secretary did not swear any affidavit to support that narrative. It is not clear whether the person who was standing in for the secretary when she was away on sick leave also forgot to bring to the attention of the Principal that summons had been served on them.”

23. Just as trial court found, I too find and hold that the appellant bore the burden of proof which it failed to discharge. Having so failed, the appellant cannot argue it was condemned unheard.

24. On the second issue appellant submitted that the trial court failed to consider the correct principles of setting aside default judgment. As stated, before the judgment entered against the appellant was a regular judgment. The consideration of this issue brings to mind the holding of the case Shah v. Mbogo (1967) E.A. 116 as follows:-(iv)Applying the principle that the Courts discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause by justice, the motion should be refused”.

25. The appellant as I stated here above failed to prove the excusable mistake or error which resulted in default judgment being entered against it. There was no evidence from the secretary who was served on what mistake or error prevented her from bringing to the notice of the principal that summons and plaint that were served. That failure to prove mistake or error which can be excused was fatal. It needs be noted that not only was the appellant served with summons and plaint but was also served with the Notice of Entry of default judgment against it on 2nd August, 2019. That Notice has the appellant’s stamp.

26. The appellant would be entitled to setting aside the default judgment if the draft defence contained triable issues.

27. The cases relied upon by the appellant in this appeal on the test of whether there was a triable issues in its defence were decisions on summary judgment applications. In some of those cases, the respondent was alleged to have made admission of the claim. Those decisions therefore were limited in assisting to this Court.

28. A triable issue is when a party brings forth a live issue to be resolved. The respondent in her plaint pleaded that between the period of 21st January, 2013 to 10th July, 2018 she supplied the appellant at appellant’s request, various and assorted stationery and related goods valued Kshs.8,809,582. The respondent further pleaded that she raised invoices for settlement by the appellant. To those pleadings, the appellant brought forth in its draft defence statement that it denied the respondent delivered goods as stated above and then pleaded.“... and puts the plaintiff (there the respondent) to strict proof thereof. The defendant (there the appellant) further avers that the plaintiff did not deliver any goods to the institute and that no invoices were ever raised and served upon the defendant by the plaintiff.The defendant further avers that the plaintiff was not awarded any contract for the supply of any goods to the institute and that no local purchase orders were issued.”

29. That pleadings in the draft defence was made in the light of production of countless number of LPO of the appellant addressed to the respondent for various dates and invoices which are at pages 12 to 101 of the appellant’s record of appeal, hereof. The draft defence, it follows contained mere general denials without reason. It simply was not sufficient and did not raise triable issue to merely deny without supporting the denial. A case in point is Equitorial Commercial Bank Ltd v Jodam Engineering Works Limited & 2 others[2014]eKLR thus:-

“22. I am guided by the decision of ERF Kenya Limited v Bustrack Limited & another[2005] eKLR in which the High Court quoted with approval the decision in Magunga General Stores v Pepco Distributors Ltd [1987] 2 KAR 89 that mere denial is not sufficient defence. L. Njagi, J. stated as follows:-“It is to be remembered that the plaintiff has demonstrated clearly the amount of money owed per month. The defendants merely deny owing that money. They don’t deny the existence of the contract for the supply of vehicle spare parts, nor that these were supplied. Their denial is therefore a general one which does not specifically traverse the allegations of fact in the statement of claim. In Magunga General Stores v Pepco Distributors Ltd [1987] 2 KAR 89, where the defendant used such generalised denial, Platt, J.A., said:-‘First of all a mere denial is not a sufficient defence in this type of case. There must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.’”These observations are applicable to this case. In the correspondence exchanged between the parties, the defendants quite frankly admitted liability. Upon being sued, they deny liability generally without advancing any explanation therefor. Did they discharge their liability in the intervening period? This is not explained. From the foregoing, it seems clear to me that the defence is a mere, general denial which does not raise any triable issues. It is not a reasonable defence.” “(underlining “mine)” 30. There are several cheques of the appellant issued to the respondent, some were drawn during the subsistence of this case and the appellant having failed to state why it paid the respondent those cheques if indeed there was no contractual relation between the parties is difficult to understand. This indeed was the finding of the trial court, thus:-“If at all the plaintiff was not awarded any contract to supply goods to the defendant as alleged, then one wonders what the cheques were drawn for. The applicant cannot be allowed to state on one side that no contractual relationship existed between the parties herein for the supply of goods whilst to the other hand the evidence shows attempts to pay for the goods delivered. The draft defence herein at its best, only comprises of mere denials are to whether there was any business relationship between the parties herein yet the documents on record shows otherwise. The essence of the court setting aside a judgment is to allow parties articulate their case on merit before a final decision is reached. It is not meant to give a chance to a party who does not have a defence that raises triable issues to try it.”

31. It also needs to be stated that contrary to the submissions of the appellant, the fact it paid cheques to the respondent after the suit was filed by respondent was not a basis to set aside default judgment. Not at all. That amount paid after filing the suit will be considered and credit of the same should be given at execution stage. That finding therefore respondents to the third issue in this appeal.

32. The appellant in seeking the trial court’s exercise of its discretion was required to make a full and frank disclosure of the reason it failed to file its appearance and defence within the requisite period. Although the appellant argued that by failing to set aside the default judgment, the trial court denied it the right to be heard on merit the appellant needs to be reminded that the respondent had an equal right to enjoy the fruits of the default judgment.

33. Just as the trial court found, I too find that this appeal plainly and obviously lacks merit.

The Judgment 34. In the light of the above discussion, this appeal is dismissed with costs.

JUDGMENT, SIGNED DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:-Court Assistant: MouriceFor Appellant:- Mr. MuneneFor Respondent: - Mrs. JomoCOURTJudgment delivered virtually.MARY KASANGOJUDGE