[2017] KEHC 4612 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 164 OF 2010

KEMUSALT PACKERS PRODUCTION LTD ……APPEALLANT

VERSUS

PAUL CHARO MUKOKO .....................................RESPONDENT

J U D G M E N T

1. The decision sought to be challenged and set aside is the ruling by the trial court dated 22/7/2010 by which the court dismissed an application by the Appellant, as defendant then, seeking to set aside a judgment entered on default of the said defendant attending court and leading evidence on a date fixed for defence hearing.

2. The application was grounded on the facts that on the date the defendant’s case was closed, there had been no notice to its advocates for the date fixed. Against the application the plaintiff, now Respondent, filed grounds of opposition and as directed by the trial court the parties filed written submissions.

3. In his reserved ruling delivered on the 22/7/2010, the trial court said:-

“The Defendant argued that it had no notice of the hearing of the suit. But the affidavit of service sworn by Fredrick Wangila on 24/2/09 shows that notice for the hearing of the matter on 26/2/09 was duly served upon the Defendant’s advocate on 26/1/09. That advocate was therefore fully aware of the hearing but did not attend and no reasons were given as to why. Whether or not he notified his client is a matter between them. It therefore follows that the Defendant was given adequate opportunity to be heard. Whether or not he has a good defence was upto it to show but did not.

I also note there has been unexplained inordinate delay in filing this application. The judgment was delivered on 23/4/09 and it was not until one year later on 24/4/10 when the defendant decided to file the application”

4. That is the decision now challenged by this appeal on the 9 grounds in the Memorandum of Appeal dated 26/7/2010 and filed on the 28/7/2010. Even though the grounds are expressed to be nine in number, the question all ask is:-

Whether the trial court was right in finding that the defendant has been served.

Whether the defence filed disclosed a triable issue that necessitated the right to be heard even where there had been a blunder leading to default.

5. The Principles upon which a court exercises its discretion to set aside a default judgment are now well settled and one need not cite any authority to reinstate that position. It is however enough to say that the purpose of the jurisdiction to set aside is to do justice to the parties and to correct any hardship that has resulted merely because of a default and which ought not to have resulted if not for the default. Merely that a party has committed some blunder should not be reason for the court to shut him from the seat of justice. See Apaloo JA, in Phillip Chemulolo vs Augustine Kubebe [1982] KAR at page 1040.

6. To achieve that goal, a court of law first asks itself whether there has been a reasonable explanation for the default where notice was served. Where however, there is no evidence of service the party is entitled to setting aside as of right.

7. However where there was service but an explanation is offered the court would still set aside on terms if it is demonstrated that there is a genuine and triable issue the defaulting party needs to avail and present to court to enable it reach a fair and just determination.

8. The other consideration that permeates through all consideration is the conduct of the defaulting party whether it sits in consonance with the norms of justice – whether it has acted in a honest and equitable manner or it has shown a design to defeat the course of justice by evasion or obstruction. See Shan vs Mbogo [1969] EA 116.

9. In the matter before court, the question of service was clearly demonstrated to have been effected. There was in the court file an affidavit of sworn by one Fredrick Wangila which showed that the defendants counsel was duly served on the 26/1/2009 for the hearing scheduled for the 26/2/2009.

10. To that extent the contention by the defendant that there was no service was never honest nor bona fide and the trial court was perfectly within the law to hold as it did that the defendant was given an adequate opportunity to be heard but chose not to attend.

11. That leave the court to consider the next question, what kind of a defence was availed by the defendant to merit being heard and therefore setting aside to enable him being heard.

12. As at the date the judgment was delivered, the defendant had filed a statement of defence dated 5/11/2004. That statement of defence admitted the occurrence of the accident and the fact that the defendant was the registered owner of motor vehicle Registration No. KAM 206E Mercedes Benz Lorry as well as the description of the parties. However the defendant denied negligence for the causation of the accident and instead attributed the causation thereto wholy or substantially to the plaintiff. Particulars of such negligence was set out and it appears that there was never a Reply to the defence hence at close of pleadings there was joinder of issues to the facts pleaded therein.

13. To this court that state of affairs presented a situation where the court was faced with two rival accounts on how the accident occurred and it could have been just that when the defendant sought to get his day in court, it should have been accorded and afforded the opportunity by setting aside even on terms. This should have served the justice of the case noting that the only evidence of causation was availed by the driver PW 3, who said he was hit on his side as he ‘was turning off the road and after he had seen the defendants motor vehicle came from behind’. This was a situation that really called for the other side to give its accounts of the event. Whether or not there was a triable issue was a cardinal consideration to be taken by the court because it for overweighed the question of whether or not there was service.

14. Against that principle the trial court seem to have got it all wrong when it said that “Whether or not he has a good defence was upto it to show bit it did not”. I have pointed herein before that there was indeed a defence on record for the court to consider.

15. In so finding the trial court committed an error of principle by failing to consider a relevant factor and matter that was incumbent upon it to consider. That error is enough to dispose of the appeal and command that the appeal be allowed.

16. I allow the appeal even though there is to this court no reasonable explanation for the delay in filing the application to set aside. That the file could not be traced in the Registry for a period of more than 10 months without an overt attempt to show efforts made is not plausible at all.

17. I therefore set aside the decision and ruling of the trial court dated 22/7/2010 and in its place substitutes an order allowing the application on terms that the matter be re-opened only for the purpose of the defendant leading evidence.

18. As parties seem to have secured the decretal sums, I order that the security continue to be held in the joint account and the matter be placed before the Chief Magistrate who shall allocate it to a court of competent jurisdiction to hear it by taking the Defendants evidence at the earliest available opportunity.

19. Having said that the defendant, appellant was duly served but offered no reasonable explanation for failure to attend the court hence the default and this appeal, I consider it guilty party who should not benefit on costs even though he has succeeded.

20. I order that each party shall bear own costs.

Dated and delivered at Mombasa on this 11thday of July 2017.

HON. P.J.O. OTIENO

JUDGE