[2022] KEHC 10505 (KLR)

Kariuuki v Standard Group Limited & 2 others (Civil Suit E190 of 2020) [2022] KEHC 10505 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10505 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E190 of 2020

JK Sergon, J

June 17, 2022

Between

Sicily K Kariuuki

Plaintiff

and

Standard Group Limited

1st Defendant

Orlando Lyomu

2nd Defendant

Jesse Rogers

3rd Defendant

Ruling

1. The defendants/applicants herein have brought the notice of motion dated November 23, 2021supported by the grounds set out on the body thereof and the facts stated in the affidavit of Millicent Ng’etich. The applicant sought for the following orders:i.Spent.ii.Spent.iii.The interlocutory judgment entered against the defendants/applicants on the June 10, 2021 together with all the orders and/or directions consequential thereto be and hereby set aside and leave be granted to the defendants to defend the suit in terms of the draft statement of defence filed herewith.iv.Upon the grant of prayer 3 above, the draft statement of defence filed herewith be deemed as duly filed and served subject to the payment of the requisite court filing fees.v.The costs of this application be borne by the plaintiff in any event.

2. In opposing the said Motion, the respondent filed the replying affidavit of advocate Donald B. Kipkorir, sworn on December 17, 2021.

3. The applicants rejoined with the further affidavit of advocate Millicent Ng’etich sworn on May 2, 2022.

4. When the Motion came up for interparties hearing the parties respective advocates chose to rely on the averments made in their respective affidavits and the brief oral arguments.

5. A brief background of the matter is that the applicant instituted a suit against the respondents by way of the plaint dated October 26, 2020 and sought for inter alia, various forms of damages and an order for permanent injunction against the respondents, arising out of the tort of defamation.

6. It is the applicants’ averment that they were only made aware of the suit on November 16, 2021, when the plaintiff's counsel informed their counsel on record that the case was set for formal proof hearing on November 30, 2021, and that the respondent's counsel had requested an interlocutory judgment in default of appearance, which was later entered against them on June 10, 2021.

7. The applicants avers that they have never been served with the summons to enter appearance and the pleadings in this matter with the result that they could neither enter appearance nor file a defence to the claims against them.

8. The applicants contend that they have a good defence to the action against them and they entreat this court to grant them leave to file the same and defend the action against them as there is real and imminent danger of immense prejudice being suffered by the applicants if the interlocutory judgment is not set aside.

9. In response, the respondent in her replying affidavit stated that on 25th of February 2021 the duly appointed process server sent an email to the applicant’s via their email address corporate@standardmedia.co.ke as set out on the 1st applicant’s company website plus an attachment which included the summons to enter appearance.

10. The respondent stated that the applicants on receiving the summons failed to enter appearance within the stipulated 15 days but they on March 16, 2021made a request for judgment due to the failure of the applicants to enter appearance.

11. The respondent avers that the applicants did not establish factual and legal basis for the application for the orders sought to set aside the interlocutory judgment.

12. I have considered the application, affidavits and cited authorities by both counsel. The issue for determination is whether the defendant has made out a case for the exercise of this court’s discretion to set aside the interlocutory judgment entered on June 10, 2021.

13. The law applicable for setting aside an ex-parte interlocutory judgment in default of appearance or defence is Order 10 Rule 11 of the Civil Procedure Rules which provides that;“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

14. The well-established principles of setting aside interlocutory judgments were laid out in the case of Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 as per Duffus P. who stated as follows:“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 to it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J. put it “a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication.”

15. It is the applicants’ case that some of the issues that made them not file their defence was that the email address corporate@standardmedia.co.ke that the respondent allegedly used to effect service upon the applicants is not the correct email address used by the applicants to receive service of legal documents and court pleadings as it is the correct email used by the applicants to receive service of court documents and pleadings is legal@standardmedia.co.ke and that a notice to that effect had been prominently displayed at the entrance of the 1st applicant’s offices from August 2020.

16. The applicants reiterate that they have never been served with the summons to enter appearance and that the pleadings in this matter and with the result they could not neither enter appearance nor file a defence to the claims against them.

17. On the other hand the respondent insists that the applicants had been duly served through their email address corporate@standardmedia.co.ke as set out in their company’s website and that they failed to enter appearance within the stipulated 15 days.

18. A perusal of the copy of defence shows that the defendants asserts that the publication complained against was not defamatory of the plaintiff as alleged but rather was an accurate report and fair report on matters of great national importance at the material time being an inquiry of into loss of public funds at the National Youth Service. These are issues to be determined at a full hearing.

19. Considering the issues to be determined in this matter, the draft defence annexed and the fact that the defendants have explained their challenges and the reasons for being late in filing its defence it would be an injustice to allow the interlocutory judgment to remain at this point without letting the parties bring out all issues for the court to determine after hearing both sides.

20. In the case of Jomo Kenyatta University of Agriculture and Technology v Musa Ezekiel Oebal [2014] eKLR CA 217/2009, the Court of Appeal stated that the object of clothing the court with discretion to set aside judgment obtained exparte has been pronounced in many decisions and sampled the following:“To avoid injustice or hardship resulting from accident; inadvertence or excusable error; not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice……..” See Shah v Mbogo &another [1967] EA 116.

21. Further in the case of Sebei District Administration v Gasyali & others [1968] EA 300 Sheridan J remarked:“The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court”

22. After due consideration of all I have stated above, I find merit in the defendants’ application seeking to set aside the interlocutory Judgment.

23. The motion dated November 23, 2021 is allowed thus giving issuance to the following orders:i. The interlocutory Judgment entered on June 10, 2021 plus any consequential orders are hereby set aside.ii. The defendants’ are granted leave to file its defence out of time and the annexed draft defence is deemed as duly filed and served with leave of court save for payment of the requisite court fees.iii. Costs of the application to abide the outcome of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff/Respondent……………………………. for the Defendant/Applicant