[2023] KEHC 1975 (KLR)

Dyme and Co Inc v Bravie Group Limited & 2 others (Civil Case E048 of 2022) [2023] KEHC 1975 (KLR) (Commercial and Tax) (10 March 2023) (Ruling)

Neutral citation: [2023] KEHC 1975 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E048 of 2022

A Mabeya, J

March 10, 2023

Between

Dyme And Co Inc

Respondent

and

Bravie Group Limited

1st Applicant

Samuel Wathika

2nd Applicant

Jackson Kahora

3rd Applicant

Ruling

1. The defendants moved this court vide the application dated 10/5/2022 which was brought under the Civil Procedure Act. The specific sections were not quoted.

2. The application sought orders that the interlocutory judgment entered on 22/4/2022 in default of appearance and defence be set aside and that the defendants be granted leave to file their defence and defend the suit.

3. The grounds for the application were set out on the face of the application and in the supporting affidavit sworn by Samuel Wathika Gathuru on 10/5/2022. It was contended that the interlocutory judgment was irregular. That no notice of entry of judgment was served upon the defendants and that on 13/4/2022, the defendants advocate on record entered appearance and attended court for mention.

4. That on that day, hon Wanyama DR granted the defendants leave to file their responses and the matter was scheduled for mention on 8/6/2022 to confirm compliance. That surprisingly, the defendants received a text from court on 4/5/2022 that interlocutory judgment had been issued against them. The defendants were thus apprehensive that if the judgment was not set aside, it would be prejudicial to them.

5. The plaintiff opposed the application vide the grounds of opposition dated 29/6/2022 and a replying affidavit sworn by Jorge De Yarza on 1/7/2022. It was contended that the summons and pleadings were served on the defendants vide email and whatsapp as per the affidavit of service dated 2/3/2022.

6. That the defendants failed to enter appearance within 15 days or file a defense within 14 days thereafter ending on 30/3/2022. That the plaintiffs requested for interim judgment but on 30/3/2022, the court directed that the summons be served afresh causing the plaintiff to serve again by hand delivery to the defendants’ last known address via registered post on 1/4/2022. The affidavit of service dated 8/4/2022 and letter dated 1/4/2022 were relied on for this averment.

7. That the defendants again failed to enter appearance by 15/4/2022 or and file a defence by 29/4/2022. The plaintiff the requested for judgment on 14/4/2022. That interlocutory judgment was entered on 22/4/2022 for USD 282,460. That the memorandum of appearance filed on 13/4/2022 was defective as it was dated 14/4/2022.

8. That no explanation was given why the defence had not been filed and no triable issues were disclosed. That it was not denied that service was properly effected. That no real intention to defend the suit had been shown and the application was but a delay tactic.

9. The application was disposed of by way of submissions. The plaintiff’s submissions were dated October 24, 2022 while those of the defendants were not on as at the time of writing this ruling. This court has considered the record.

10. Courts are guided by the provisions of article 159(2)(d) of the Constitution and section 1A and 1B of the Civil Procedure Act in administering justice. The court’s focus ought to be on substantive justice, rather than procedural technicalities and the just, efficient and expeditious disposal of cases.

11. Order 10 of the Civil Procedure Rules, provides for the consequences of non-appearance, default of defence and failure to serve by a party. Order 10 rule 4 empowers the court to enter interlocutory judgment in cases where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages.

12. In David Kiptanui Yego & 134 others v Benjamin Rono & 3 others [2021] eKLR, it was held: -“The courts are not required to consider the merits of a defence in an application of this nature, although the applicant has a defence to the counter-claim which it should be allowed to be heard on merit. Therefore, courts ought to look at the draft defence to the plaint and accompanying witness statements before proceeding to give its ruling as to whether the applicant’s defence raises triable issues.”

13. The defendants’ case was that the interlocutory judgment was defective for failure to be served with the notice of entry of judgment, and that it was entered before the scheduled mention date to confirm whether the defendants had complied.

14. This court has seen the court proceedings before the Deputy Registrar. On 30/3/2022, the plaintiff’s advocate appeared to confirm entry of the judgment. There was no appearance for the defendant. The court recorded that it had considered the request for judgment dated 17/3/2022 and noted that the documents were not delivered as per the email dated 1/3/2022. The plaintiff was directed to serve again, and the matter was scheduled for 14/4/2022 to confirm service of summons.

15. On 14/4/2022, the defendant’s advocate appeared before hon Wanyama, but there was no attendance for the plaintiff. Ms Otieno for the defendant submitted that the advocates had received instructions the previous day, being 13/4/2022 and were awaiting mapping. The court directed that the matter be mentioned on 8/6/2022 for compliance. The record then indicates as follows: -22/4/20221st, 2nd & 3rd Def

16. There is also a stamp and signature. However, it is not clear which court the matter appeared before, and parties in attendance. There is also no record of what occurred on that date.

17. The matter was however mentioned again on 14/6/2022 before hon Wanyama and none of the parties attended. The court recorded that judgment was entered on 22/4/2022 against the defendants, and directed parties to proceed for formal prove before a judge on 18/7/2022.

18. This court has considered the record appearing on the ‘CTS’ filing- system. There is an indication that the defendants’ advocate filed the memorandum of appearance dated 14/4/2022 on 13/5/2022 as well as their notice of appointment. Though the plaintiff submitted heavily on the discrepancies in the filing date on CTS and the date indicated on the notice of appointment and memorandum of appearance, the court record indicates that indeed the defendant’s advocate appeared before the Deputy Registrar on 14/4/2022 and submitted that they were instructed on 13/4/2022. The CTS indicates that the documents dated 14/4/2022 were filed on 13/5/2022.

19. It would seem that as at 13/4/2022, the defendants were not only aware of the suit but their own advocate attended court and indicated that instructions had been received. Although those advocates drew the memorandum of appearance on 14/4/2022, they waited a month later to file the same.

20. It should be noted that the plaintiff was forced to serve the defendants twice. That the interlocutory judgment was entered on 22/4/2022, 7 days after the defendants’ advocate had attended court on 14/4/2022.

21. In Winnie Wambui Kibinge & 2 Others v Match Electricals Limited Civil Case No 222 of 2010, the court held that: -“It does not follow that just because a mistake has been made a party should suffer the penalty of not having his case heard on merit.”

22. In the circumstances, the interlocutory judgment cannot be said to have been irregular. Lack of service of notice of entry of judgment is not a ground per se to invalidate a regular judgment. It goes to issues of execution and nothing more.

23. The defendants and their advocates did not own up that they failed to enter appearance out of their own mistake. That the court should forgive such mistake, instead they gave lame excuses attacking an otherwise regular judgment. I do not think that the discretion of the court is to be exercised in favour of such a party.

24. Under article 159 of the Constitution, justice is to be expeditiously dispensed with. The rules of procedure and timelines set out therein are geared towards achieving fair trial and expeditious justice. The defendants cannot be said to be working towards that end. They are in breach of section 1A of the Civil Procedure Act.

25. In any event, the defendants did not show that they have any defence to the plaintiff’s claim. No draft defence was attached to the application for the court to consider the nature of defence, if any that the defendants would mount at the trial.

26. In the circumstances, I find the application to be without merit and dismiss the same with costs.

27It is so ordered.

DATED AND DELIVERED THIS 10TH DAY OF MARCH, 2023. A. MABEYA, FCIArbJUDGE