[2022] KEHC 15786 (KLR)

Kamau & another v Korir (Civil Appeal E021 of 2022) [2022] KEHC 15786 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15786 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E021 of 2022

RL Korir, J

December 1, 2022

Between

Samson Kamau

1st Appellant

Florence Njeri Cianda

2nd Appellant

and

Weldon Korir

Respondent

(Being an Appeal from the Ruling of the Principal Magistrate, L. Kiniale dated 9th May 2022 in the Magistrate’s Court at Bomet, Civil Suit Number E010 of 2020)

Judgment

1. The respondent (then plaintiff) sued the appellants (then defendants) for general and special damages that arose out of a road accident which involved the respondent and motor vehicles registration numbers KCT 581B and KBF 300D.

2. Judgment in the trial court was delivered on December 20, 2021 where the respondent was awarded Kshs 2,159,822. On March 11, 2022, the trial court noted errors in its Judgment and pursuant to the provisions of sections 99 and 100 of the Civil Procedure Rules, it rectified the name of the 2nd defendant/2nd appellant and the motor vehicle registration number to KCT 581B instead of KCD 381B.

3. The appellants filed a notice of motion application dated March 11, 2022 that sought among others the setting aside of the trial court’s judgment.

4. Ruling of the aforementioned application was delivered on May 9, 2022. The particulars of this ruling will be discussed later on in this ruling.

5. Being dissatisfied with the ruling dated May 9, 2022, the appellants filed their memorandum of appeal dated May 12, 2022 and relied on the following grounds:-I.That the learned magistrate erred in law and in fact in finding that the appellants were served with the amended plaint and summons despite lack of proof of service to that effect; in particular, the affidavit of service attached as proof of service was not dated and it makes reference to totally different documents that were purported to be served which are not even in the court record.II.That the learned magistrate erred in law and fact in ordering that the appellant pay throw away costs and auctioneer’s costs as a condition for release of the second appellant’s motor vehicle registration number KCT 581B without any justification.III.That the learned magistrate erred in law and fact in finding that the appellants pay the auctioneer fees before the motor vehicle registration number KCT 581B could be released to the appellants yet the issue of auctioneers fee was never a ground pleaded and/or properly canvassed in the application subject to the ruling of this appeal for the magistrate to make it a condition precedent for the motor vehicle registration number KCT 581B to be released.IV.That the learned magistrate erred in law and fact in finding that the appellants pay the auctioneer fee as a condition for the release of motor vehicle despite the fact that the said auctioneers fee as provided for by rule 55 of the auctioneers rules is an issue that will take a judicial process which includes inter alia, the auctioneer to file the application for assessment of costs, and if either party is dissatisfied with the said decision they will have a right to appeal to the High Court which will take time. For the learned magistrate to make the auctioneer fee a condition for the release of motor vehicle registration number KCT 581B is akin to forcing the applicant to pay the auctioneer’s fee before the motor vehicle can be released.V.That the learned magistrate erred in law and in fact in proceeding to hold that the judgment entered was regular yet there was clear uncontroverted evidence that the appellants were never served with the amended plaint, the notice of entry of judgment and the decree and the warrants were never amended either in the manner held by the trial magistrate or at all.VI.That the learned magistrate erred in law and in fact in holding that failure to date an affidavit of service was a mere procedural technicality yet section 5 of the Oaths and Statutory Declarations Act makes it a mandatory requirement that every affidavit must be dated.VII.That the learned magistrate erred in law and in fact in holding that it was not disputed that the notice of entry of judgment was served yet it was one of the grounds for the unconditional setting aside of the trial magistrate’s irregular judgment.VIII.Thatthe learned magistrate erred in law and in fact by abusing discretionary powers and demonstrating open and manifest bias in favour of the plaintiff and gate-keeping for the auctioneer’s illegal fees at the expense of the appellants; all this time hiding under the veil of judicial immunity and consequently failing to act judiciously in the circumstances of the case.

The Plaintiff’s/respondent’s Case 6. Through the amended plaint and his evidence in the trial court, the respondent stated that on September 3, 2020 while walking along Bomet-Kaplong road, motor vehicle registration number KCT 581B was negligently driven, lost control and hit motor vehicle registration number KBF 300D which then veered off the road and hit him occasioning him severe injuries. The particulars of the injuries were particularized in paragraph 6 of the amended plaint.

7. The respondent stated that the 1st appellant being the driver of motor vehicle registration number KCT 581B was negligent in causing the accident and particularized his negligence in paragraph 5 of the plaint.

8. The respondent’s claim against the appellants was for future medical expenses, special and general damages.

The Respondent’s Submissions. 9. The respondent submitted that the appellants were properly served with pleadings as there was a return of service on record. That the appellants did not contest the contents of the affidavit in regards to how the pleadings were served. It was his further submission that they only contested the physical outlook, grammatical errors which transcends to procedural technicalities which by dint of article 159 of the Constitutionwere inconsequential.

10. It was the respondent’ submission that the appellants challenged the trial court’s exercise of discretion when it came to setting aside an ex-parte judgment. That the appellants have not demonstrated how the trial magistrate misdirected herself in rendering ruling that upheld a default judgment. He relied on the case of Shah v Mbogo &another (1967) EA 116.

11. The appellant submitted that execution was a lawful process that was anchored in our legal system. That there was a copy of motor vehicle records which showed that the 2nd appellant as the owner of the motor vehicle registration number KCT 581B. It was his further submission that the appellants were trying to sabotage the wheels of justice by ensuring that there was no property to be attached therefore depriving him the fruits of his judgment.

12. It was the appellant’s submission that the courts have discretion to award throw away costs and they do so on a case to case basis. He relied on the case of Kenya Power & Lighting Company Limited v Abdulla Mohammed andanother(2017) eKLR.

13. The appellants neither filed a defence nor entered an appearance in the trial court.

The Appellants Submissions. 14. The appellants submitted that they were neither served with fresh summons together with the amended pleadings nor were they served with the notice of entry of judgment as required by order 22 of the Civil Procedure Rules. That the Affidavit of Service was false as the dates of the pleadings it referred to were different. It was their further submission that the Affidavit of Service was never dated contrary to section 5 of the Oaths and Statutory Declarations Act, cap 15 of the laws of Kenya.

15. It was the appellants submission that a judgment is irregular if a party was not served with summons. That a court can set aside the irregular Judgment on its own motion. They relied on the cases of James Kanyiita Nderitu & Another v Marios Philotas Ghikas &another (2016) eKLR and Kabutha v Mucheru (2004) eKLR to support this submission.

16. The appellants submitted that hegeons auctioneers proclaimed and attached the 2nd appellant’s motor vehicle registration number KCT 581B based on a decree, warrants of attachment and proclamation that were never addressed to the 2nd appellant. That the aforementioned documents were erroneous and the only remedy would have been to rectify the decree and fresh warrants issued. They relied on the case ofMasinde Muliro University of Science and Technology v Alfatech Contractors Limited & 2others(2021) eKLR.

17. It was the appellant’s submission that the trial court erred in setting aside the interlocutory judgment on condition that they pay throw away costs and the auctioneers fees because of the irregular judgment and erroneous decree and warrants of attachment.

18. My work as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the Court of Appeal case of Gitobu Imanyara & 2others v Attorney General(2016) eKLR.

19. It is salient to note that this file being Bomet High Court Civil Appeal Number E021 of 2022 is a sister file to Bomet High Court Civil Appeal Number E022 of 2022. The trial court files were also sister files being Bomet CMCC No E009 of 2020 and Bomet CMCC No 010 of 2020. The prayers sought in the trial court were similar, the Judgments delivered by the trial court were similar. The only difference are the respondents. it then follows that the analysis of the facts and the orders thereafter will be similar.

20. I have read through and carefully considered the record of appeal dated June 9, 2022, the memorandum of appeal dated May 12, 2019, the appellant’s written submissions dated July 22, 2022 and the respondent’s written submissions dated July 27, 2022. From my appreciation of the pleadings aforesaid, I find that almost all the issues raised in this appeal have either been overtaken by events, or have been resolved by the trial court or by the parties themselves. My take therefore is for the larger part, this appeal in an academic exercise. The only outstanding issue is whether the trial court exercised discretion judiciously when it ordered the appellant to pay throw away costs to the Respondent.

21. As earlier noted, the appellants neither entered appearance nor filed a defence in the trial court. interlocutory judgment was entered against them on August 12, 2021. Formal proof hearing was conducted on October 25, 2021 where the respondent testified and produced evidence in support of his claim.

22. Judgment in the matter was delivered on December 20, 2021 where the respondent was awarded Kshs 2,159,822. On March 11, 2022, the trial court noted errors in its Judgment. Pursuant to the provisions of sections 99 and 100 of the Civil Procedure Rules, it rectified the name of the 2nd defendant/2nd appellant and the motor vehicle registration number as KCT 581B instead of KCD 381B.

23. In the trial court, the appellants filed a notice of motion application dated March 11, 2022 that sought the following orders:-I.That the application be certified as urgent and be heard exparte and service of the same be dispensed with in the first instance.II.That pending the hearing and subsequent determination of this application interparties, this honourable court be pleased to make a temporary order for stay of execution and release of motor vehicle registration number KCT 581B on a running attachment as the same was the applicant’s tool of trade.III.That consequential to prayer II above, this honourable court be pleased to make a declaration that the attachment of motor vehicle registration number KCT 581B was unlawful, illegal, unprocedural, null and void ab initioand against the doctrine of lis pendens and proceed to forthwith order the release of the said motor vehicle.IV.That the exparte interlocutory judgment entered against the defendants/applicants herein be set aside together with the consequential orders therein and the defendants/applicants be given unconditional leave to file defence out of time and have the annexed defence deemed as duly filed.V.That this honourable court do set aside the illegal execution proceedings commenced by hegeons auctioneers and/or other auctioneers and call for the warrant of sale and warrants of attachment of movable property already issued, with the view of their cancellation.

24. In the ruling of the aforementioned application that was delivered on May 9, 2022, the trial court ruled as follows:-I.That a stay of execution of the decree is hereby confirmed.II.That the judgment entered herein is hereby set aside together with the consequential orders arising from the said judgment.III.That the defendants/applicants are hereby granted leave to defend the suit and the motor vehicle registration number KCT 581B herein is set to be released to the defendants/applicants but only on conditionthat the applicants pay the plaintiff throw away costs of Kshs 20,000/= in addition to the auctioneer’s costs.IV.That the defendants to file their defence within 30 days from the date of this ruling.V.That failure to comply with the set conditions set above herein renders the Judgment entered to revert and the plaintiff/respondent be at liberty to proceed with execution.VI.Costs of this application to be borne by the defendants/applicants.

25. The appellants then moved this court through a notice of motion application dated May 12, 2022 where they sought the following orders:-I.That this application be certified as urgent and be heard exparte at the 1st instance.II.That pending the hearing and determination of this application, this honourable court be pleased to grant stay of execution of the ruling delivered by Hon L Kiniale on May 9, 2022 and order for the release of motor vehicle registration number KCT 581B held by hegions auctioneerson a running attachment and/or upon such conditions that the court may deem fit.III.That pending the hearing and determination of the appeal herein, this honourable court be pleased to order for stay of execution of the ruling delivered by Hon L Kiniale on May 9, 2022 and all other consequential orders emanating therefrom.IV.That the costs of this application be provided for.

26. In a consent dated July 5, 2022, the parties consented to the following terms:-I.That the applicants to pay Hegeons Auctioneers the sum of Kshs 250,000/= on a without prejudice basis, being the auctioneer’s total costs arising from Bomet CMCC Numbers E009 and E010 of 2020 and await the outcome and determination of the Appeal therein.II.That if the applicants appeal is allowed, the auctioneer will refund the applicants the amount paid within 14 days upon demand and in default thereof, the applicants will be at liberty to recover the paid sum of Kshs 250,000/= as a civil debt through a civil suit.III.That if the applicants appeal is dismissed, the auctioneer will be at liberty to tax his bill of costs and ascertain the true amount he ought to have paid.IV.That Hegeons Auctioneers to unconditionally release the 2nd applicant’s motor vehicle registration number KCT 581B upon payment of the sum of Kshs 250,000/= indicated in clause I above.V.That the record of appeal is in order.VI.That the appeal be canvassed by way of written submissions.VII.That appellants be given 7 days to prepare and file their submissions and the respondent to equally be given 7 days to prepare and file their submissions.VIII.That the court do issue a mention date when parties will confirm filing of submissions.IXThat the same orders to apply in regards to the applicant’s application dated May 12, 2022 in Bomet HCA E021 of 2012.

27. From the pleadings on record, it appears to me that the appellants were appealing against the ruling of the trial court delivered on May 9, 2022 while in fact the impugned ruling was in their favour as it allowed them a chance to file a defence and ventilate their case.

28. At this juncture, I revisit the grounds of appeal as follows; grounds 1 and vi related to disputed service. It was the appellants argument that the court erred in entering judgment against them when they had not been served. Grounds v and vii related to the impugned judgment. As already shown above the trial court in the ruling dated May 9, 2022 set aside the default judgment and all its consequential orders. The court made a finding that there was proper service and that failure to date the affidavit of service did not render the service null. The court further found the judgement regular. Nonetheless, the court appreciated the need for substantive justice and set aside the default judgment with the consequential orders. The court granted the defendant/respondent 30 days to file their defence and further granted an order for stay of execution.

29. What the appellant now wants this court to do is to make a finding on service as well as whether the judgment was regular or irregular. I consider this an academic exercise because the appellant’s desire to set aside the judgment was allowed by the trial court whether or not the service was proper and whether the judgment was regular or irregular.

30. The appellants submitted that they appealed against the ruling to the extent that the trial court found that they were served with summons to enter appearance, amended plaint and the notice of entry of judgment.

31. Section 20 Civil Procedure Act requires that upon the institution of a suit, the defendant should be served in the prescribed manner in order to enter appearance and answer the claim.

32. Order 5 rule 1(1) provides that:-When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.Rule 6 provides that:-Service of the summons shall be made by delivering or tendering a duplicate thereof signed by the judge, or such officer as he appoints in this behalf, and sealed with the seal of the courtRule 13 provides that:-Where a duplicate of the summons is duly delivered or tendered to the defendant personally or to an agent or other person on his behalf, the defendant or such agent or other person shall be required to endorse an acknowledgment of service on the original summons:Provided that, if the court is satisfied that the defendant or such agent or other person has refused so to endorse, the court may declare the summons to have been duly served.Rule 15 provides that:-(1)The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.(2)Any person who knowingly makes a false affidavit of service shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or one month’s imprisonment or both.

33. There is an undated affidavit of service on record that was filed on August 11, 2021 sworn by Elijah Gekonge Nyangau. He stated that he received summons to enter appearance, plaint and verifying affidavit and annextures on April 28, 2021 with instructions to serve the same to the appellants. The affidavit goes on to state that he served both appellants on the same day and both declined to sign his service copy.

34. The making of affidavits is governed by the Oaths and Statutory Declarations Act, cap 15 Laws of Kenya. Section 5 of the Act provides that:-Every commissioner for oaths before whom any oath or affidavit is taken or made under this act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.Further, section 8 states:A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the schedule.

35. The process server returned unsigned summons to enter appearance dated April 28, 2021. I note that the amended plaint and its annextures were all dated April 1, 2021 and not April 12, 2021 as indicated in the affidavit of service. I also noted that the affidavit of service was properly signed before a commissioner for oaths, Mr. Erick Omariba and the only anomaly was the missing date. In my view these are small technical and procedural issues that should not be used to drive a litigant away from the seat of substantive justice. what was important was that the affidavit clearly showed that the appellants were personally served. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6others[2013] eKLR the Court of Appeal stated as follows:-“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness..............Essentially the rules remain subservient to the Constitution and statutes. Article 159 (2) (d) of the Constitution, section 14 (6) of the Supreme Court Act, section 3A and 3B of the Appellate Jurisdiction Act, sections 1A and 1B of the Civil Procedure Act and section 80 (1) (d) of the Elections Act place heavy premium on substantive justice as opposed to undue regard to procedural technicalities. A look at recent judicial pronouncements from all the three levels of court structure leaves no doubt that the courts today abhor technicalities in the dispensation of justice."

36. Further in the case of SagguvRoadmaster Cycles (U) Ltd (2002) 1 EA 258, the Court of Appeal of Uganda held that:“………….the defect in the jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of article 126 (8), of the 1995 Constitution, which stipulates that substantive justice shall be administered without undue regard to technicalities. I should perhaps mention that the jurat is the short statement at the foot of the affidavit indicating when, where and before whom it was sworn. It would follow that the learned judge had the power to order that the undated affidavit be dated in court or that the affidavit be re-sworn before putting it on record. He was also correct to penalize the offending party in costs.”

37. The appellants had an opportunity to seek for an order to cross examine the process server in their application dated March 11, 2022 if they felt that the contents of the affidavit of service were false but they did not do so. In the case of Justus Kariuki Mate & another v Martin Nyaga Wambora &another (2014) eKLR, the Court of Appeal had this to say in regards to Affidavits of Service:“An Affidavit of service consists of sworn factual evidence of the deponent. This Court in Baiywo --v- Bodi Bach, Civil Appeal No 122 of 1986 (UR) while applying the principles restated in; Miruka v Abok & another, [1990] KLR 544, Platt, JA stated: -“There is a qualified presumption in favour of the process server recognized in MB Automobile -v- Kampala Bus Service [1966] EA 480 at p 484 as having been the view taken by the Indian courts in construing similar legislation. On Chitaley and Annaji Rao: The Code of Civil Procedure Vol II p 1670, the learned commentators say: -‘3. Presumption as to service – There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service.”(See also Agigreen Consulting Corp Limited v National Irrigation Board (2020) eKLR)

38. On the strength of the affidavit of service on record and in the absence of any contest from the appellants, it is my finding that the appellants were properly served with the summons to enter appearance, the amended plaint and it annextures.

39. With respect to failure to serve notice of entry of judgment, the trial court acknowledged the omission and I shall therefore not belabour this point in any event, the net effect of not serving a party with Summons to enter appearance, the amended plaint and notice of entry of judgment would be to have the interlocutory judgment set aside. In its impugned ruling of May 9, 2022, the trial court in exercise of its discretion set aside the judgment it had entered against the appellants and other consequential orders and they were further granted leave to file a defence.

40. To my mind, the outstanding issue that the appellants had with the impugned ruling was the issue of the throw away costs. The appellants contended that the trial court was wrong in ordering them to pay throw away costs. The trial court ordered the release of motor vehicle registration number KCT 581B on condition that the appellants pay Kshs 20,000/= as throw away costs.

41. Cost are awarded at the discretion of the court order. Section 27 (1) of the Civil Procedure Act provides that:-Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.Order 1 rule 23 of the Civil Procedure Rules providesthat:-The court may decide all questions of costs between a third party and the other parties to the suit, and may make such orders as to costs as the justice of the case may require.

42. In the case of Patelvs East Africa Cargo Handling Services Ltd(1974) EA 75, it was held:“There are no limits or restrictions on the judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.”(See also the Court of Appeal case of Shanzu Investments Ltd v Commissioner of Lands (1993) eKLR)

43. The discretion of the trial court is to be exercised judiciously and each case must be looked at separately and decided upon on its own unique facts. As already discussed above, the appellants did not enter appearance or file a defence. The judgment dated December 20, 2021 awarded the respondent Kshs 2,159,822/= plus costs. The same Judgment was thereafter set aside. I concur with the trial court’s decision to award the throw away costs as that would balance the interests of both parties. (SeeKenya Commercial Bank Ltd v. Sun City Properties Ltd & 5 others(2012) eKLR). (See also the Court of Appeal case of Pithon Waweru Maina v Thuka Mugiria (1983) eKLR).

44. It is my finding that the trial court did not misdirect itself or misapprehend any facts to entitle this court to interfere with the award of the throw away costs. (See Kenya Power and Lighting Co Limited v Abdulla Mohamed and another (2017) eKLR).

45. The final issue is the auctioneers costs. The appellants argue that the trial court awarded costs to the auctioneers without due procedure. I note however that the parties entered a consent in this judgment in which has already been reproduced only in this judgment on the auctioneer’s costs. I shall therefore not belabour the issue. In conclusion it is my considered view that this appeal was merely an academic exercise.

46. Ground VIII of the memorandum of appeal as worded does not add value to the appeal but amounts to a practice to be discouraged as it offends the rules of professional courtesy.

47. In the end, the appeal dated May 12, 2022 has no merit. it is dismissed with costs to the respondent. The trial file is returned to the trial court for the suit to proceed on merits.

48. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 1ST DAY OF DECEMBER, 2022. ..........................R. LAGAT-KORIRJUDGEJudgement delivered in the absence of the parties. Kiprotich (Court Assistant)