[2017] KEHC 1402 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 194 OF 2014

EAST AFRICAN SEA FOOD LIMITED ...............................APPELLANT

-V E R S U S –

ELIJAH NYAMAIKO ONDERI ...................................1ST RESPONDENT

TEMA HOMECARE LIMITED ................................... 2ND RESPONDENT

CMC MOTORS LIMITED .......................................... 3RD RESPONDENT

(Being an appeal from the ruling and order of the Hon. SRM (A.g) T. S. Nchoe delivered on 7th May, 2014 in CMCC No. 2838 of 2007)

JUDGEMENT

1. Elijah Nyamaiko Onderi, the respondent herein filed an action before the Chief Magistrate’s Court, commercial Courts, Nairobi against East African Seafood Ltd, the appellant herein and 2 others in which he sought for damages for the injuries he sustained as a result of a road traffic accident involving motor vehicle registration no. KAT 911E and KAR 196E. A default judgment was entered against the appellant. The appellant applied for the default judgment to be set aside vide the motion dated 24th October 2013. The aforesaid application was heard and dismissed by Hon. T. S Nchoe, learned Senior Resident Magistrate on 7. 5.2014. Being dissatisfied the appellant preferred this appeal.

2. On appeal the appellant put forward the following grounds in its memorandum:

1. THAT the learned Senior Resident Magistrate (A.g) Mr. T. S. Nchoe erred in both fact and law in that in holding that an honest failure to timely forward the summons and pleadings to the advocates was not a good reason refusing to exercise the unfettered discretion under Order 10 rule 11 of the Civil Procedure Rules, 2010.

2. THAT the learned Senior Resident Magistrate (A.g) Mr. T. S. Nchoe erred in both fact and law in applying the wrong principles in determining an application under Order 10 Rule 11 of the Civil Procedure Rules, 2010.

3. THAT the learned Senior Resident Magistrate (A.g) Mr. T. S. Nchoe erred in both fact and law in failing to be guided by decisions cited by the appellants which were binding on him.

4. THAT the learned Senior Resident Magistrate (A.g) Mr. T. S. Nchoe erred in failing to uphold the emerging jurisprudence sanctioned by Section 159 of the Constitution of Kenya, 2010 and Sections 1A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya.

5. THAT the learned Senior Resident Magistrate (A.g) Mr. T. S. Nchoe erred in failing to take notice of the recognition by the appellant that an award for throw away costs would be suffice.

3. When the appeal came up for hearing, learned counsels appearing in this appeal recorded a consent order to have the appeal disposed of by written submissions.

4. I have re-evaluated the case that was before the trial court. I have also considered the rival written submissions. Though the appellant put forward a total of 6 grounds of appeal, one main ground commends itself for consideration. It is whether or not the trial magistrate properly exercised his unfettered discretion to set aside exparte decisions. It is the submission of the appellant that the trial magistrate failed to take into account the fact that the appellant had a good defence with triable issues. It is also pointed out that the trial magistrate failed to appreciate the fact that a regular default judgment may still be set aside if the defendant gives convincing reasons to explain why the defendant was prevented from entering appearance and filing a defence under Order 10 rule 11 of the Civil Procedure Rules.

5. The respondent on the other hand is of the view that the appellant did not adduce sufficient reasons to warrant the setting aside of the default judgment. The respondent further argued that the appellant only sought to set aside the interlocutory judgment but failed to apply for the final judgment to be set aside.

6. I think it is important to tackle at this stage the last issue raised by the respondent. It is argued that the appellant has not challenged the final judgment delivered by the trial court of 13. 9.2013. With respect, the respondent’s argument cannot stand because the final judgment is as a result of a formal proof which took place as a result of a default judgment entered. If the default judgment is impugned on appeal it means that the judgment arising from the formal exparte hearing will also give way.

7. The main issue which must be determined is whether or not the trial magistrate properly exercised his discretion in dismissing the application for setting aside the exparte judgment. There is no dispute that the appellant was properly served with the summons to enter appearance together with the plaint. It is the appellant’s submission that it informed the trial magistrate that it forwarded the summons to enter appearance together with the plaint to its insurers but its insurers failed to enter appearance nor file a defence forcing the respondent to obtain a regular default judgment. In his brief ruling, the trial magistrate stated that there was proper service upon the appellant. He also found that there was a regular judgment on record. It is clear from the ruling of the learned magistrate that he appreciated that the appellant’s failure to enter appearance and to file a defence was inadvertent. The appellant did not challenge the regularity of the interlocutory judgment. The question is whether or not, in the circumstances, the trial magistrate should have set aside the interlocutory judgement. In my humble view, the learned magistrate erred when he failed to find that though the interlocutory judgement was regularly obtained, the appellant had given a plausible explanation as why the same should have been set aside.

8. In the end, I am satisfied that this appeal is with merit. The same is allowed. Consequently, the order dismissing the motion dated 24. 10. 2013 is set aside and is substituted with an order allowing the motion. The subsequent proceedings conducted pursuant to the formal proof proceedings are set aside. In the circumstances of this case, the respondent is awarded costs of the appeal and the motion before the trial court. The appellant is given leave to defend the suit which should be heard denovo by another magistrate of competent jurisdiction other than Hon. T. S. Nchoe on priority basis.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

................................................ for the Respondent