[2023] KEHC 25363 (KLR)

Katuvi & another v Kire (Civil Appeal E187 of 2022) [2023] KEHC 25363 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25363 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E187 of 2022

DAS Majanja, J

November 17, 2023

Between

Ngui Katuvi

1st Appellant

Derick Kyalo Kisalu

2nd Appellant

and

John Wakiri Kire

Respondent

(Being an appeal from the Ruling and Order of Hon. K. O. Gweno, Adjudicator/RM dated 23rd March 2022 at Milimani Small Claims Court Case No. E530 of 2021)

Judgment

1. The appeal herein emanates from a ruling by the Small Claims Court declining to set aside an ex-parte judgment entered against the Appellants.

2. By the judgment dated 17. 12. 2021 (“the Judgment”), the Small Claims court found the Appellants fully liable for a road traffic accident that took place on 16. 06. 2021. The Respondent suffered injuries as a result of the accident and was awarded an aggregate sum of Kshs. 450,000. 00 comprising general damages, special damages and lost earnings.

3. Execution of the decree by the Respondent caused the Appellants to lodge an application dated 04. 02. 2022 seeking to set aside interlocutory judgment entered against it. In his supporting affidavit, the Respondent stated that he came to learn of the Judgment as a result of the execution. He requested to cross-examine the deponent of the process server regarding the mode of service and that they be allowed to file the Response to the Statement of Claim as their defence raises triable issues.

4. In his response to the application, the Respondent’s advocate opposed the application on the ground that that the judgment was regular and no basis had been made to set aside the Judgment as the Appellants advocates had been notified of the proceedings and despite being served they failed to participate in the proceedings.

5. The Adjudicator considered the application and held that since the Appellants had not contested service, the Judgment was regular. That the Appellants did not give any reasons why they did not file their defence on time and the court declined to exercise discretion in their favour.

6. As this is an Appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed by section 38 of the Small Claims Court Act (“the SCCA”) which limits appeals to matters of law. This means the Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial Court.

7. Under section 43 of the SCCA, the court may on application of any party to the proceedings set aside any of its orders and make such orders as it thinks just. This jurisdiction, as with the jurisdiction of the ordinary courts to set aside default judgment is wide and unfettered and the appellate court will not interfere with the decision of the trial court unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been an injustice (see Mbogo v Shah [1968] EA 93 and United India Insurance Co. Ltd and Others v East African Underwriters (Kenya) LtdNRB CA Civil Appeal No. 36 of 1983 [1985] eKLR).

8. From the record, the default judgment was entered on 11. 11. 2021 by the Adjudicator who was satisfied the Respondents were duly served. Thereafter the court fixed the matter for formal proof on 21. 11. 2021 on which day it proceeded for formal proof and judgment was duly reserved.

9. While the Appellants refute service of the Statement of Claim, in ground (c) of the application dated 04. 02. 2022, they state as follows:The Respondents/Applicants had instructed the firm of Kimondo Gachoka & Company Advocates to come on record on their behalf and the said firm (filed its) Memorandum of Appearance and Response to the Statement of Claim dated 2nd December 2021 and served upon the firm on record for the Claimant/Respondent on 8th December, 2021 and further wrote various letter(s) dated 26th November 2021 and 30th December 2021 which were received by the firm but no disclosure was made to the firm of Kimondo & Gachoka and Co. Advocates that there was an interlocutory judgment against their client or that the matter was coming up for hearing mention or judgment.

10. This statement was confirmed by the Respondent hence the Adjudicator was correct to come to the conclusion that in fact Appellants were duly served hence the interlocutory judgment was regular. Further by the time the Appellants purportedly entered appearance and filed their Response to the Claim on 02. 12. 2021, interlocutory judgment had been entered, the formal proof had proceeded and the judgment reserved for 17. 12. 2021. I use the word purported because the entry of interlocutory judgment debarred the Appellants from filing their Response to the Claim unless that interlocutory judgment was set aside.

11. Even where the judgment is regular, the court may yet proceed to set aside the judgment if justice of the case demands, particularly where the defendant demonstrates that it has a good defence and any prejudice caused by setting aside may be assuaged by an award of costs (see Tree Shade Motors Limited v D T Dobie and Company (K) Ltd and Another [1998] eKLR).

12. While the Appellants did not explain why they failed to file their Response to the Claim within the time prescribed, the Adjudicator did not consider whether the Appellants had a good defence or whether indeed any prejudice could be assuaged by an order for costs. In this case, it is clear that by purporting to file memorandum of appearance and the Response to the Claim the Appellants demonstrated an intention to defend the claim. As to whether the Appellants’ response raised a triable issue, is clear that the Respondent was a pedestrian and thus the issue of whether the Appellants were fully liable or whether the Respondent contributed to the accident was a live issue. I also hold that this is a case where costs and a conditional order would sufficiently protect the Respondent.

13. Having reached the aforesaid conclusion, I allow the appeal and order as follows:a.The interlocutory judgment entered against the Appellants on 11. 11. 2021 and the judgment of 17. 12. 2021 is set aside on the terms hereunder.b.The Appellants shall deposit the decretal amount in a joint interest earning account in the names of the Advocates of the Appellants and the Respondent within 21 days from the date hereof.c.The Appellants shall pay costs of the proceeding in the Subordinate Court and of this Appeal assessed at Kshs. 35,000. 00 within 21 days from the date hereof.d.The Response to the Claim filed in the Small Claims Court shall be deemed as duly filed and served.e.The matter is referred back to the Small Claims Court for disposal.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. D. S. MAJANJAJUDGEMr Njuguna instructed by Kimondo Gachoka and Company Advocates for the Appellants.Mr Abdirazak instructed by Roba and Associates Advocates for the Respondent.