[2015] KEHC 1483 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 207 OF 2014

GATTS (K) LIMITED..........................................…………PLAINTIFFS

VERSUS

PETER AWANDO GODIAL

ROSELINDA AMOLO AWANDO

TOM JOHN AWANDO

GEORGE GITONGA MUCHIRI T/A FANTASY AUCTIONEERS.........DEFENDANTS

RULING

The subject of this ruling is the motion dated 20th May 2015 in which the 1st and 2nd Defendants herein are praying for orders of stay of execution of the decree pending the hearing of the application inter partes, they also pray that the decree issued against the defendant on 5th November 2015 be set aside and costs be provided for. The motion is supported by the affidavits of Willis W. Echessa, Peter A. Godial and Roselinda A. Awando sworn on 20th May 2015. When served with the motion the Plaintiff filed a replying affidavit, he swore to oppose the motion. Learned counsels appearing in this suit recorded a consent order to have the motion disposed of by written submissions.

The gist of the suit is that the plaintiff and the defendants had a tenancy relationship over premises located along Lenana road L.R. No. 1/1109, Nairobi. The defendants were meant to effect a change of user of the premises from the current status of that of residential to that of commercial but the plaintiff failed to do so. The defendants are alleged to have breached the lease agreement entered by the parties which allowed the plaintiff to utilize the premises as a motor vehicle service centre without any interruptions. This has not been the case since were disrupted by the Nairobi County Government thus allegedly breaching the plaintiff's quiet possession of the suit premises. It is on this basis that the plaintiff filed a suit in this court and allegedly issued the defendants with summons which the defendant failed to honor prompting the plaintiff to request for a default judgment that was entered against the defendants to the tune of Kshs 31,413,500/= with interest and further auctioneer's charges of kshs 658,907/=.

I have considered the grounds outlined on the face of the motion plus the facts deponed in the affidavits filed in support and against the application plus the replying affidavit together with the rival written submission. The 1st and 2nd defendants claim that they were never served with the summons to enter appearance as required by law. Subsequently, a default judgment for Kshs 31,413,500/= was entered against the defendants for want of appearance. The defendant are of the view that the Deputy Registrar did not satisfy herself that service was properly effected. Moreover, the defendants argue that they were not served with a 10 day notice that precedes execution. They also argue that they have a strong defence.

Pending the hearing of the aforesaid application, the Defendants are before me seeking for a stay of execution of the decree and setting aside of the judgment.

It is the submission of the Defendants that unless the order is granted to them the Plaintiff is likely to execute the decree. It is argued that the defendants failure to attend court for this matter was for lack of proper service of summons by the plaintiff. The defendants aver that the affidavit of service by one Samson Kinuthiawhich was allegedly served on one Mercy Awando,an alleged daughter of the 1st and 2nd defendants on 15th September 2014 was not served on the 1st and 2nd defendants as required by the Law since the defendant does not have a daughter by that name.

I have considered the rival submissions and the following are the issues to be determined:-

Whether there was a proper service of summons,

Whether the ex-parte judgment should be set side,

whether stay should be issued.

The defendants application seeks to set aside the interlocutory judgment entered against the 1st and 2nd defendants on the grounds that they were not served with summons to enter appearance as the summons were served upon a Mercy Awandowho is unknown to them. They claim further that they have strong defence and should be given a chance to be heard and to defend the suit. They have brought the current application under Order 10 rule 11 which gives this court the discretionary power to set aside or vary a judgment and any consequential decree or order upon such terms as are just. The defendants are further aggrieved by the plaintiff's failure to issue them with a 10 days' notice of the entry of judgment. The plaintiff on the other hand claims that service was effected properly as required by the Law. It is argued that the defendants were served by the process server at their residence situate along Lenana road next to Yaya Centre which adjoins the plaintiffs leased premises. It is argued that service was effected on their daughter. The summons were further served on the 3rd defendant who is a son to the 1st and 2nd defendant and he confirmed that he had instructions to receive on behalf of his parents. They also attempted service on the defendants advocates M/s Rautta & Company advocates but they intimated they were waiting to be given instructions after they informed the defendants of the suit. Plaintiff's further argued that the defendants were aware of the suit but they failed to enter appearance.

Order 5 Rule 12 provides that: -

"where in any suit, after a reasonable number of attempts have been made to serve the defendant, and defendant cannot be found service may be made on an agent of the defendant empowered to accept service or on any adult member of the family of the defendant who is residing with him."

The process server in his affidavit of service states that he did not serve the 1st and 2nd defendant personally but he served the summons to a lady called Mercy Awando who claimed to be the daughter of the 1st and 2nd defendant. However, that cannot be the case for there is no proof that the 3rd defendant resides with the 1st and 2nd defendant. There is no credible evidence that the 3rd defendant was empowered to receive service on behalf of the 1st and 2nd defendant. In anycase, according to Order 5 of the Civil Procedure Rules, service on the agents of the defendants, is only supposed to be effected where several attempts to serve the defendants have failed.

I have also looked at the draft statement of defence annexed to the supporting affidavit and I find that it raises triable issues. Subsequently, it is in the interest of justice that the defendants should be given an opportunity to be heard. In Maina versus Mugiria(1983) KLR 78, the court of appeal stated in part as follows:

"The principles governing the exercise of judicial discretion to set aside an exparte judgment obtained in default of either party to attend the hearing are:

a) Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties.

b) Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.Shah v Mbogo [1967] EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48. .."

The 1st and 2nd defendants have also prayed for stay of execution. In deciding an application for stay, the principles to be considered are well settled. First, the applicant should show the substantial loss he would suffer if the order is denied. Secondly, whether the application was made without undue delay. Thirdly, the issue regarding the provision security must be addressed.

Since I have come to the conclusion that the default judgment should be set side, I do not intend to consider the application for stay of execution.

Consequently I issue an order to set aside the interlocutory judgment.

Costs of the motion is granted to the defendants. The defendants are given unconditional leave to defend the suit. The defendant to file and serve their defences within 15 days from the date of this ruling.

Dated and delivered in open court this 23rd day of October, 2015

J. K. SERGON

JUDGE

In the presence of:

................................................................. for the Plaintiff

...................................................................for the Defendants