[2017] KEHC 10062 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 371 OF 2009

ELIZABETH WANJIKU KARIUKI…………………….…1ST PLAINTIFF

PAULINE NJOKI KANGI……………………….....….…2ND PLAINTIFF

ANNE JULIA WAMBERE KANGI………………….......3RD PLAINTIFF

- VERSUS -

K-REP BANK LIMITED………………………….........1ST DEFENDANT

PETER KINYANJUI MUKOMA……………………....2ND DEFENDANT

NANCY WAMBUI NJUGUNA………………..............3RD DEFENDANT

JOSEPH MURIITHI MIANO…………………….....…4TH DEFENDANT

PETER GACHIE T/A REGENT AUCTIONEERS…......5TH DEFENDANT

CHIEF LAND REGISTRAR………………………........6TH DEFENDANT

RULING

1. The application before me was brought by the 5th Defendant, PETER GACHIE T/A REGENT AUCTIONEERS (N) LIMITED. The applicant has asked the court to set aside the interlocutory judgement which was entered against him on 25th March 2010.

2. The applicant also seeks leave to enable him file his Defence together with all other requisite documents.

3. The applicant concedes that he had been duly served with the Amended Plaint and Summons to Enter Appearance. However, he says that the Summons were misplaced and that thereafter he had been unable to follow-up the proceedings in the case.

4. According to the applicant, it was only in April 2017 when he became aware that the court had granted interlocutory judgement against him, in March 2010. He did become aware of that development when Mr. Kenneth Wilson Advocate phoned him, asking if he was aware that judgement had been entered against him.

5. The applicant said that he deeply regretted having failed to Enter Appearance or to file a Defence.

6. However, the applicant believes that the interlocutory judgement was void abinitio, because the claim against him was neither for liquidated nor pecuniary Damages or for the detention of goods.

7. The applicant has also exhibited a draft Defence which he intends to file in court, if he is granted leave to do so. As far as the applicant was concerned, the impugned sale which he conducted was a lawful Auction, which was preceded by all the requisite notices to the plaintiff.

8. The applicant also hoped to have the opportunity to demonstrate to the court that the persons who purchased the suit property had not only paid the 25% Deposit at the fall of the hammer, but that they did also pay the balance of 75% within 30 days, as required.

9. In answer to the application, the plaintiffs insist that the interlocutory judgement against the 5th defendant was regular and lawful. The basis for that contention is said to be the provisions of Order 10 Rule 4(1) of the Civil Procedure Rules; which provides as follows;

“Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the date fixed in the summons or all the defendants fail to so appear, the court shall, on request in Form No. 13 of Appendix A, enter judgement against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of judgement, and costs”.

10. Clearly, interlocutory judgement may only be entered in the event that there was a liquidated demand.

11. In this case, the plaintiffs claim against the 5th defendant is not for a liquidated sum.

12. The plaintiffs claims against the 5th defendant are as follows;

“(d) A declaration that the purported sale of the plaintiff’s properties known as NAIROBI/BLOCK/69/117/26 UNIT No. 26 AND 149, NAIROBI/BLOCK 69/117/48 UNIT No. 48 AND 149, AND NAIROBI/BLOCK/69/117/9 UNIT No.9 and 148; by Messrs the 5th Defendant on 26th May 2009 or any other date thereafter is null and void ab initio and if the said properties have been transferred to any of the Defendants or any other 3rd Party or Parties, the said transfers be cancelled forthwith and the said properties do revert to the plaintiff.

(e) Damages be awarded to the plaintiffs for wrongful sale of the said properties.

(f) Any further order concerning preservation, or recovery of the said properties as this Honourable Court may deem just and fair.

(g) Costs of this suit together with interest thereon”.

13. Clearly therefore, the claims against the 5th defendant are not for any liquidated sum.

14. In the circumstances, the interlocutory judgement was irregular. It cannot be allowed to stand. It must be set aside.

15. The court does not have any discretion in the matter.

16. If the judgement had been regular, the court could consider whether or not the justice of the case would be achieved by the setting aside of a judgement which had been entered more than 7 years ago.

17. In all probability, a delay of 7 years, before a defendant brings an application to set aside an interlocutory judgement, is inordinate.

18. This court is alive to the fact that when defendants are faced with a Plaint, which was filed simultaneously with an application for interlocutory relief; such as an injunction to restrain the defendants, it is possible that the parties attention would remain focused on the application.

19. In the circumstances, if an interlocutory judgement was regular, the court would not usually set it aside unless the defendant satisfied the court that he has a Defence which has merits.

20. In the event that the judgement was not regular, the defendant does not have to demonstrate that his Defence was merited.

21. Having concluded that the interlocutory judgement herein was irregular, I now order that it be set aside unconditionally.

22. The 5th defendant is granted leave to file and serve his Defence within the next seven (7) DAYS.

23. Ordinarily, the costs of the application should be awarded to the successful applicant. However, in this case, although the interlocutory judgement has been set aside, I also find that the applicant did not provide any reasonable explanation for the delay in making his application.

24. As a consequence, the plaintiff has undertaken steps towards making the case ready for trial; and that was done on the understanding that in respect to the 5th defendant, the plaintiff would not have needed to lead evidence to prove liability.

25. Following the setting aside of the interlocutory judgement, the plaintiffs may well be obliged to put together more evidence, to enable them respond to the 5th defendant’s Defence.

26. In a nutshell, there is a probability that the plaintiff may suffer “thrown away costs?.

27. It would be unfair to order the plaintiff to pay the costs of the 5th defendant’s application, in the prevailing circumstances. I therefore order that each party will bear his/her own costs of the application.

DATED, SIGNED and DELIVERED at NAIROBI this5th dayof December2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Miss Gathanzure for Mbabu for the 1stPlaintiff

Miss Gathanzure for Mbabu for the 2nd Plaintiff

Miss Gathanzure for Mbabu for the 3rdPlaintiff

Miss Serem for Wilson for the 1st Defendant

Miss Macharia for Mungai for the 2nd Defendant

No appearance for the 3rd Defendant

No appearance for the 4th Defendant

Miss Serem for Wilson for the 5th Defendant

no for the 6th Defendant

Collins Odhiambo – Court clerk.