[2022] KEHC 1614 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 112 OF 2014

KAPADIA KAMLESH.......................................................................APPELLANT

-VERSUS-

NAOMI NJERI KAMAU............................................................... RESPONDENT

(Being an appeal against the ruling and order of Honourable S. Atambo (Ms.) (Principal Magistrate) delivered on 7th March, 2014 in MILIMANI CMCC NO. 6822 of 2010)

JUDGMENT

1. The respondent herein instituted a suit before the ChiefMagistrate’s Court by way of the plaint dated 22ndOctober, 2010 and sought for the sum of Kshs.340,950/ plus costs of the suit and interest thereon against the appellant and another party not before this court (“the third party”), arising out of a material damage claim.

2. The respondent averred in her plaint that she was at allmaterial times the registered owner of the motor vehicle registration number KAY 840S (“the subject motor vehicle”) while the appellant and the third party were the registered and beneficial owners of the motor vehicle registration number KAJ 566R (“the second motor vehicle”) respectively.

3. The respondent pleaded in her plaint that sometime on or aboutthe 12thday of December, 2008 while she was lawfully driving the subject motor vehicle along Kamiti Road in Nairobi, the appellant and/or the third party negligently drove the second motor vehicle, causing it to collide with the subject motor vehicle, resulting in loss and damage to the latter motor vehicle, the particulars of which were set out in the plaint.

4. Subsequently, upon the request of the respondent, an ex partejudgment was entered against the appellant on 14thSeptember, 2012.

5. Consequently, the appellant filed the application dated 8thOctober, 2013 and sought for the reinstatement of his suit/defence for hearing and/or for the enlargement of time to enable him lodge an appeal against the aforementioned ex parte judgment. The application was opposed by the respondent.

6. Upon hearing the parties on the abovementioned application,the trial court dismissed it with costs vide its ruling delivered on 4thMarch, 2014.

7. Being aggrieved by the aforementioned ruling, the appellantsought to challenge the same by way of an appeal. Through his memorandum of appeal dated 28thMarch, 2014 the appellant put in the following grounds:

i. THAT the learned trial magistrate erred in dismissing the application dated 8th October, 2013 which denied the appellant an opportunity of being heard and proceeded to uphold the judgment which was irregular.

ii. THAT the learned trial magistrate erred in dismissing the application dated 8th October, 2013 and upheld a judgment which was contrary to the respondent’s pleadings.

iii. THAT the learned trial magistrate erred in dismissing the application dated 8th October, 2013 and failed to take hind of the appellant’s evidence.

iv. THAT the learned trial magistrate erred in law and in fact by failing to take hind that no certificate of posting and/or proof was availed by the respondent to confirm the alleged interlocutory judgment was ever posted to the appellant as alleged.

v. THAT the learned trial magistrate erred in law and in fact by failing to take hind of the respondent’s admission that though the respondent was the registered owner of the motor vehicle registration number KAJ 566R, one DAVID KAMAU WANGUI was a beneficial owner.

vi. THAT the learned trial magistrate erred in law by failing to appreciate the motor vehicle registration number KAJ 566R had been indeed sold to one DAVID KAMAU WAMBUI by the time of the alleged accident by the respondent.

vii. THAT the learned trial magistrate erred in law by failing to appreciate that it was the duty of the one DAVID KAMAU WANGUI the then 2nd defendant in Milimani CMCC NO. 6822 OF 2010 to lodge the duly signed transfer documents with the Registrar of Motor Vehicle together with the logbook for transfer of ownership of the said motor vehicle upon the same being surrendered to him.

viii. THAT the learned trial magistrate proceeded unprocedurally in disallowing the said application.

ix. THAT the learned trial magistrate’s decision has occasioned a miscarriage of justice.

8. This court gave directions to the parties to file writtensubmissions on the appeal. The appellant vide his submissions dated 17thSeptember, 2021 argues that the interlocutory judgment entered is irregular for the reason that he was not made aware of the existence of the suit to begin with since there was no service of summons to enter appearance upon him.

9. The appellant further argues that he has a good defence whichraises triable issues that ought to be ventilated at the trial.

10. For the above reasons, the appellant urges this court to allowthe appeal and to grant the consequent orders sought.

11. In reply, the respondent contends that the summons to enterappearance were served upon the appellant and that there is evidence of such service on record, and hence the interlocutory judgment is regular.

12. The respondent contends that the appellant therefore had noexcuse for failing to enter appearance and/or file his statement of defence within the stipulated timelines and cites the case ofPrime Bank Limited v Paul Otieno Nyamodi [2014] eKLRwhere the court reasoned that it is the duty of a defendant to demonstrate to the court as to the reason for not entering appearance and/or filing a statement of defence in good time, in order to justify the setting aside of an ex parte judgment.

13. It is the submission of the respondent that the appellant’s draftof defence does not raise any triable issues which would necessitate the setting aside of the interlocutory judgment.

14. It is also the submission of the respondent that she stands tosuffer prejudice if the appeal is allowed since the suit was filed back in 2008 and it is apparent that the appellant is disinterested in defending the claim made against him, and that the respondent cannot be reasonably compensated for the delay in the matter.

15. To buttress her argument above, the respondent refers thiscourt to the case ofRayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd [2018] eKLRwhere the court rendered thus:

“The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

16. For all the foregoing reasons, the respondent is of the view thatthe appeal must fail.

17. I have considered the contending submissions and authoritiescited on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal fundamentally lies against the trial court’s decision to dismiss the appellant’s application seeking to set aside the interlocutory judgment. I will therefore deal with the grounds of appeal contemporaneously under the following limbs.

18. The first limb of appeal concerns itself with whether theinterlocutory judgment entered on 14thSeptember, 2012 is regular.

19. In the application dated 8th October, 2013 the appellant statedthat he was never served with summons to enter appearance and/or the pleadings in the suit or the notice of entry of judgment.

20. In reply, the respondent by way of the affidavit sworn byadvocate Milly J. Odari on 23rdOctober, 2013 stated that following investigations on the whereabouts of the appellant by Millenium Global Insurance Investigators Limited (“the Investigators”), the summons to enter appearance and the pleadings were handed over to process server, Francis Mwaura Kamau, who then contacted the appellant through his mobile number and agreed to meet him at BC Insurance Agency located on 2ndfloor of the Shopping Mall near Oshwal Primary School.

21. The deponent stated that the said Francis Mwaura served theappellant with the summons and that the appellant handed him a copy of the sale agreement while indicating that he had sold the second motor vehicle in the year 2008.

22. Upon hearing the parties on the Motion, the learned trialmagistrate analyzed that service had properly been effected upon the appellant and therefore found the interlocutory judgment in place to be regular, in the absence of entry of appearance and the filing of a statement of defence by the appellant.

23. Upon my study of the record, I note that the respondent hadavailed a copy of the affidavit of service sworn by Francis Mwaura Kamau on 16thJanuary, 2011 whose contents support the averments made in the replying affidavit and indicated hereinabove.

24. Upon my further study of the record, I note that the respondentalso availed a copy of the sale agreement referenced hereinabove which according to the process server, was handed to him by the appellant at the time of service.

25. I did not come across any credible evidence by the appellant torefute the above position on service of the summons to enter appearance as well as the pleadings in the suit. It is also not in dispute that the appellant did not enter appearance or file his statement of defence in good time or at all.

26. In view of the foregoing circumstances, I concur with thereasoning of the learned trial magistrate that summons to enter appearance were taken out and properly served upon the appellant and hence the interlocutory judgment is regular.

27. This brings me to second limb of the appeal touching on whetherthe appellant’s draft statement of defence raises triable issues.

28. In his affidavit in support of the Notice of Motion dated 8thOctober, 2013 the appellant stated that he had sold the second motor vehicle to the third party vide the sale agreement dated 28thOctober, 2008 and hence at the time of the accident, ownership had already passed from him.

29. The appellant therefore stated that his defence raises triableissues which can only be considered at the trial.

30. On her part, the respondent dispelled this assertion by takingthe position that the appellant appears as the registered owner of the second motor vehicle according to search records.

31. In her ruling, the learned trial magistrate made reference to theproviso ofSection 8of theTraffic Act,Cap. 403 Laws of Kenyawhich stipulates that in the absence of any other evidence, the person whose name appears on the registration document in respect to a motor vehicle will be considered its owner.

32. In determining whether or not to set aside an exparte/interlocutory judgment, a court is required to consider whether a party has a triable defence even where service of summons is found to be proper. In so saying, I cite with approval the rendition in the case ofTree Shade Motors Ltd v D.T. Dobie & Another (1995-1998) IEA 324relied upon in the case ofM/S Jondu Enterprises Limited v Spectre International [2019] eKLRthus:

“Even if service of summons is valid, the judgment will be set aside if defence raises triable issues. Where a draft defence was tendered together with an application to set aside a default judgment, the court hearing the application was obliged to consider if it raised a reasonable defence to the plaintiff’s claim. Where the defendant showed a reasonable defence on the merits, the court could set the ex-parte judgment aside.”

33. From my study of the appellant’s draft statement of defence, Iobserved that he is essentially challenging the claim of his ownership of the second motor vehicle at the time of the accident is being challenged.

34. In my view, the foregoing consists of a triable issue which canonly be adequately ventilated at the hearing of the suit.

35. The third limb of appeal and condition for consideration insetting aside an interlocutory/default judgment has to do with whether the respondent stands to be prejudiced. Upon my perusal of the record, I observed that the learned trial magistrate did not address her mind to this condition.

36. Going by the record, it is apparent that the respondent indicatedthat she would be prejudiced since she had filed the suit back in 2008 and it is apparent that the appellant had no interest in defending the claim.

37. However, from my study of the record I observed that therespondent did not place any credible evidence before the trial court to show that the prejudice suffered would be so irreparable as to constitute a grave injustice to her, or that any prejudice cannot be adequately compensated by way of costs.

38. Upon taking into account all the foregoing factors hereinabove, Iam convinced that it would be a proper exercise of my discretion to interfere with the impugned ruling and to grant the appellant the opportunity of defending the claim.

39. In the end, I allow the appeal and grant the following orders:

i. The ruling delivered on 7th March, 2014 is hereby set aside and is substituted with an order allowing the Motion dated 8th October, 2013 with no orders as to costs.

ii. The interlocutory/default judgment entered on 14th September, 2012 and all consequential orders/ proceedings are hereby set aside.

iii. The appellant is granted leave to file and serve its statement of defence and counterclaim within 14 days from today.

iv.In the circumstances of this appeal, a fair order on costs is to order that each party to bear its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

............................

J. K. SERGON

JUDGE

In the presence of:

………………………………... for the Appellant

………………………………... for the Respondent