[2022] KEHC 1314 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO. E28 OF 2021

BETWEEN

GEORGE OUMA ONYANGO......................................................1ST APPELLANT

VINCENT ACHOLA OPIYO...................................................... 2ND APPELLANT

AND

WILSON ACHIENG ATHO &

LORNAH ADHIAMBO ODONGO

[Suing as legal representatives of the estate of

Wilkista Aluoch Deceased]................................................................RESPONDENTS

(Being an Appeal from the Ruling in Homa Bay Chief Magistrate’s CMCC No. 39 of 2020 by Hon. Tom Mark Olando –Senior Resident Magistrate).

JUDGMENT

1. On 31st March 2021 the learned magistrate delivered a ruling in respect of an application dated 8th February, 2021. The appellant had sought three substantive orders as follows:

a) That this honourable court be pleased to order a stay of execution of the ex-parte judgment delivered on 25th November 2020 herein pending the hearing and determination of this application inter-partes;

b) That this honourable court be pleased to set aside the ex-parte judgment entered herein on 25th November, 2020 and all consequential orders issued thereof; and

c) That the defendants/applicants be granted unconditional leave to defend this suit and the draft statement of defence annexed herewith be deemed to be properly on record upon payment of requisite filing fees.

2. The learned magistrate dismissed the application and the appellants were dissatisfied. They filed this appeal through the firm of Kimondo Gachoka & Company Advocates. Only one ground of appeal was advanced; that the learned trial magistrate erred in law and fact in dismissing the application dated 8th February, 2021.

3. The respondent opposed the appeal through the firm of Everlyne Kuke & Company Advocates.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. Default judgment for failure to file defence is provided for under Order 10 Rule 10 of the Civil Procedure Rules while Order 10 Rule 11 provides for the setting aside of a default judgment entered under Order 10 Rule 10. This provisions envisages situations where failure to file defence may be justified. In John Mukuha Mburu vs. Charles Mwenga Mburu [2019] eKLRthe court stated:

It is trite that the test for the correct approach in an application to set aside a default judgment are; firstly, whether there was a defense on merit; secondly whether there would be any prejudice and thirdly what is the explanation for the delay. This guide was set in the Court of Appeal in the case of Mohammed & Another vs. Shoka (1990) KLR 463.

In the CMCHoldings Ltd v James Mumo Nzioki [2004] eKLRthe court said:

…in law, the discretion which the Court has in deciding whether or not to set aside ex parte judgement is meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error and it would not be proper use of such discretion if the Court were to turn its back to a litigant who has demonstrated such an excusable mistake inadvertence accident or error.

The court went on to say:

The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgment is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgment, the Court must consider not only reasons why the defence was not filed or for that matter why the applicant failed to turn up for hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues.

6. The explanation that was given for the delay was human error. Since the appellant had filed defence in a sister file number 38 of 2020, the failure to do so in this matter can only be interpreted as a genuine human error which is excusable.

7. The defence that was filed disputed the salient issues raised in the plaint and in my view this raised triable issues. The respondent was not going to suffer any prejudice which could not be adequately compensated.

8. I therefore allow the appeal with the following orders:

a) That the impugned ruling is set aside with no orders as to costs.

b) That the default judgment entered on 25th November, 2020 is set aside with thrown away costs to the respondent.

c) That the appellant to be at liberty to file defence within 14 (fourteen) days of this judgment.

DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE