[2001] KEHC 749 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS CIVIL CASE NO. 3399 OF 1992

FREDRICK CHEGE KAMENWA………………………………………..……….PLAINTIFF

VERSUS

ARON K.KANDIE……………………………………………………………….DEFENDANTS

RULING

The Defendant/Applicant has filed in this court an application dated 6th June, 2000 Under Order 9A Rule 10, Order 6A Rules 3,4,5,7 and 8 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law.

The applicant seeks Orders that the interlocutory judgement entered on the 4th August, 1993 be set aside; that he be granted leave to file an amended statement of defence and that the annexed amended statement of defence in draft be deemed duly filed and served from the date of setting aside the interlocutory judgement and granting leave to file the amended statement of defence and that the memorandum of appearance dated 22nd September, 1994 be deemed to have been filed and served.

It is the applicant’s case that he was not served with the Summons to enter appearance. Mr. Ritho, the Learned Counsel for the applicant submitted that they were served with the amended Plaint and Summons in September, 1994 only to find on 29-5-2000 that an interlocutory judgement had been entered against the defendant applicant way back on 4-8-1993.

In the return of service by Francis Kamau and filed on 15-6- 1993, the process server stated that he personally served the applicant with the summons and plaint, which the applicant accepted but refused to sign.

Subsequently, the respondent amended its plaint and again sought to serve the applicant with the re-issued summons and amended plaint. Surprisingly, unlike what happened on the previous occasion the applicant accepted service and immediately instructed an advocate to enter appearance and file defence on his behalf. The advocate promptly entered appearance and filed defence on 23rd September and 6th October, 1994 respectively.

There is nothing to explain the applicant’s sudden change in responding to the Summons. In his affidavit the applicant depones that he has been a Civil Servant for a long time during which time he rose through the ranks to that of Director of Personnel Management/Permanent Secretary, Office of the President, a very senior government position and therefore was aware and conscious that court process must be obeyed by everyone. It is no wonder that he accepted the revised summons. The process server in the return of service states that he had difficulties tracing the applicant. I am inclined to believe that his efforts were in vain but he nonetheless filed a return of service. I find that the applicant has satisfactorily faulted service of the first summons. I therefore accept the applicant’s denial of service.

In my view and I so hold, the interlocutory judgement was an irregular judgement and it could be vacated.

That would easily have settled this application. Nevertheless let me venture and look at other matters raised in this application. Mr. Ritho, the Learned Counsel for the applicant also argued that the first summons to enter appearance are defective as they provide for ten days to enter appearance. I do not agree with him. Order 4 Rule 3 sub rule 4 provides that the time for appearance shall not be less than 10 days. Service may therefore be on the 10th day or any day thereafter but not earlier. Ten days is therefore sufficient to fulfil this mandatory requirement. I therefore find and hold that the summons were valid.

It is the applicant’s further case that he has a reasonable defence on the merits in that the respondent was to blame for the accident and not the applicant.

Mr. Muthee, the Learned Counsel for the Respondent submitted that there has been an inordinate delay in bringing the application and no explanation for the same has been offered, therefore the applicant is guilty of laches and that the respondent will be prejudiced at this stage. But Mr. Ritho the Learned Counsel for the applicant submits that leave was granted by Lady Justice Ang’awa to make the application out of time and I agree with him. When this matter came up for hearing before Lady Justice Ang’awa on 29-5-2000 it emerged, when the parties were given time to peruse the court file, that an interlocutory judgement had been entered on 8- 3-1993 for Kshs. 48,595/- with interest and costs for failure to enter appearance and file defence. Justice Ang’awa granted leave to make the present application in her ruling of the same day.

By his supporting affidavit and draft amended statement of defence annexed to the application, the applicant states that it was his son who was driving his motor vehicle registration No. KVR 087 on the material day. He depones that according to his son and his son’s companion at the time of the accident and the statements recorded in the police investigation file by police officers who visited the scene of the accident immediately thereafter, the plaintiff failed to negotiate a corner on James Gichuru Road, crossed into the applicant’s son’s lane, and hit the plaintiff’s car when it was on its lane moving towards the direction from which the plaintiff/respondents’ car was coming from. He further depones that the plaintiff and not the driver of the applicant/defendants’ car was to blame for the accident. He produced final police abstract No. A151010 dated 9th November, 1994 and sketch plans showing points of impact and where the vehicles came to rest, which I have carefully looked at. It was also deponed that that the first police abstract No. 066598 dated 20. 1.1989 and the final police abstract No. A151010 dated 9. 11. 1994 showed that the plaintiff did not have insurance cover and was therefore on the road unlawfully. It is the applicants view therefore that, however injured the plaintiff respondent was, he was to blame for the accident and has no claim against the Defendant/Applicant. He relies on Civil Appeal No. 254 of 1996.

In my view, the annexed amended statement of defence raises triable issues. The Court of Appeal in Kingsway Tyres & Automart Ltd. v. Rafiki Enterprises Ltd Civil Appeal No. 220 of 1995 was of the view that notwithstanding the regularity of an ex parte judgment, a court may set aside the same if a defendant shows he has a reasonable defence on the merits.

Jurisdiction of the court under Order 9A under which this application is brought is discretionary. The applicant has a good case to defend. It is my view that this is a proper case for trial and I allow the application.

Delivered and dated this 31st day of January, 2001.

KASANGA MULWA

JUDGE