[2023] KEHC 26187 (KLR)

Kerai v Mudaliar & another; Maseno University (Interested Party) (Commercial Case E184 of 2022) [2023] KEHC 26187 (KLR) (Commercial and Tax) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26187 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E184 of 2022

A Mabeya, J

November 30, 2023

Between

Suresh Kurji Kerai

Plaintiff

and

Arul Selvaraj Mudaliar

1st Defendant

Yuvi Construction Limited

2nd Defendant

and

Maseno University

Interested Party

Ruling

1. By a Motion on Notice dated 3/7/2023 brought, inter alia, under Order 12 Rule 7 and Order 45 Rule 1, the defendants sought the setting aside of the interlocutory judgement entered on 16/6/2023 and that they be permitted to file their defence out of time. They also sought that the accrual of interest on the loan between the parties be stayed pending the determination of this suit.

2. The application was supported by the affidavit of Arul Selvaraj Mudaliar sworn on 3/7/2023. The grounds for the application were that the defendants were at all times interested in prosecuting the case. That the matter was coming up for mention on 16/6/2023 but the Court terminated the case on unclear grounds. That the defendant’s previous advocates failed to file a defence. That the defendants had been denied an opportunity of being heard. That it was premature to close the file.

3. The plaintiff opposed the said application vide his replying affidavit sworn on 18/7/2023. He swore that the application was an abuse of Court process and was meant to delay him from realizing the fruits of his judgment. That there is no defence to the plaintiff’s claim due to unequivocal admissions. That seeking a stay of further charging of interest was inviting the Court to re-write the contract between the parties.

4. I have considered the rival averments and the submissions of the parties. This is an application for setting aside an interlocutory judgment. The principles are well known. The setting aside of an interlocutory judgment is a discretionary remedy. See Richard Murigu Wamae v AG & Anor [2018] eKLR.

5. The Court must interrogate whether the judgment being assailed is regular or irregular. If it is regular, the court must be satisfied that there is a triable issue raised in the defence. See Mbogo v Shah [1968] EA 98. The court will, also interrogate the reason for non-appearance or failure to file the defence and the time taken to apply for the setting aside. See James Kanyiita Nderitu & Anor v Marios Philotas Lilikes [2016] eKLR.

6. In the present case, the judgment was regular. The only reason given for non-filing of the defence was that the previous advocates for the defendants had inadvertently failed to file the defence.

7. I have always held the view that where a party seeks to blame his erstwhile advocate for a mistake, such advocate should be served with the application for him to answer the allegations. It is wrong to condemn such an advocate for a wrong he/she has had no opportunity to respond to. A court’s finding on it can open up a case for professional misconduct for such an advocate yet he/she may not have been heard on it. In the present case, there is no evidence that the defendant’s erstwhile advocate who is being blamed for the non filing of the defence, was ever served with the application. The allegations against him therefore are incapable of being challenged.

8. I have considered the record. There is no judgment that was entered on 16/6/2023 that the defendant’s seek to set aside. On that day, what happened was that the Court delivered a ruling on several applications. The Court observed: -“As I have already stated, there is already a valid judgment on record. The same was entered on 21/9/2022. It has not been set aside …….Accordingly, all the proceedings subsequent to the entry of that judgment were unnecessary and irregular. They are set aside and the orders made discharged forthwith.”

9. It is therefore clear that no judgment made on 16/6/2023 that is capable of being set aside.

10. Even if reference to a non-existent judgment was excused, the time between 21/9/2022 and 3/7/2023 is too long. There was inordinate delay in bringing the present application. The delay was never explained. The same being inordinate, it cannot be excused.

11. In any event, I have looked at the draft defence and I have seen nothing triable therein. The same does not raise any triable issue that warrants to go to trial. It will be a waste of judicial time.

12. Accordingly, the application dated 3/7/2023 is without merit and the same is dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. A. MABEYA, FCI ARBJUDGE