[2019] KEELC 2646 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT EMBU

E.L.C. APPEAL NO. 9 OF 2016

KITHU MUCAMO Alias

KITHU MUCHUNGU............................................APPELLANT

VERSUS

EDWARD KAGANE KAGOCE.........................RESPONDENT

(Being an appeal from the ruling dated 4th July 2016 and Judgement delivered on 21st December 2015 of the Chief Magistrate’s Court at Embu by M.N. Gicheru in Embu Civil Case No. 235 of 2015)

JUDGEMENT

1. This is an appeal against the judgement of the Hon. Chief Magistrate Maxwell Gicheru dated 21st December 2015 in Embu CMCC No. 235 of 2015 and his ruling dated 4th July 2016 in the same case. The record of appeal shows that the Appellant was the Defendant before the Magistrates’ court whereas the Respondent was the Plaintiff.

2. The record of appeal reveals that the Appellant has found himself saddled with an ex parte judgement. The record further reveals that despite advice from the trial court for the Appellant’s advocate to take appropriate legal steps to have the ex parte judgment set aside, such advice was ignored. Sadly for the Appellant, he is still a long way from extricating himself from the ex parte judgement as shall be demonstrated hereafter.

3. The history of the matter shows that by a plaint dated and filed on 26th August 2015 in Embu CMCC 235 of 2015, the Respondent sought removal of a caution registered against Title No. Mbeti/Gachuriri/445 (hereinafter the suit property) and general damages against the Appellant for lodging the caution. The Respondent’s case was quite simple and straightforward. It was that he was the registered proprietor of the suit property at all material times and that the Appellant had without just cause or excuse cautioned the same.

4. It is obvious that upon the Appellant failing to enter appearance and file a defence, the Respondent set down the suit for hearing or formal proof. The Respondent filed an affidavit of service stating that the Appellant had been duly served with court process at Gachoka which was said to be 7km from Embu town. On the strength of the said affidavit, the trial court proceeded with the hearing ex parte and delivered a judgement in favour of the Respondent as prayed in the plaint on 21st December 2015.

5. The record shows that the plaint was not meticulously drafted. Although it was clear from the body of the plaint that the Respondent was aggrieved by the caution and that he desired to have the caution removed and to be awarded damages, the final reliefs in the plaint only sought damages and costs. So, when the Respondent’s suit was allowed as ‘prayed’ the only reliefs which appeared in the decree were damages and costs.

6. That necessitated the Respondent to file a notice of motion dated 3rd March 2016 seeking removal of the caution. By the time the said application was scheduled for hearing, the Appellant had appointed an advocate to represent him. The advocate entered on record and filed only a replying affidavit in opposition to the application for removal of the caution.

7. In the replying affidavit sworn by the Appellant, he stated that he was never served with any summons or other court process prior to judgement. He further faulted the process server for swearing a false affidavit of service claiming that he had served him at Gachoka. The Appellant contended that he was actually a resident of Rianguo village in Gachuriri sub-location which was 23 km from Embu town. He also indicated that he would seek the setting aside of the ex parte judgement and all consequential orders and unconditional leave to defend the suit.

8. By a ruling dated 4th July 2016, the trial court allowed the application for removal of the caution. The court held that the Respondent was entitled to the fruits of his judgement and that the Appellant had not initiated any process for reversal of the judgement by filing an application for setting it aside under Order 10 of the Civil Procedure Rules.

9. Aggrieved by the said ruling, the Appellant filed a memorandum of appeal dated 12th July 2016 against not only the ruling of 4th July 2016 but also the ex parte judgement dated 21st December 2015. The following 4 grounds of appeal were set out:

a.That the learned Chief Magistrate erred in law and fact by not considering the grounds raised by the Appellant on the question of service of both the plaint and the application.

b.That the learned Chief Magistrate erred both in law and fact by failing to enquire thoroughly the question of service of documents to the Appellant and mode of service. (Sic)

c.That the judgement of the main suit leaves matters unexplained and should be set aside.

d.That the Appellant reserves the right to add to, consolidate, amend or to omit any of the grounds listed hereabove.

10. As of now, there is no application before the trial court by the Appellant to set aside the ex parte judgement dated 21st December 2015. It would appear that the Appellant desires this court to set aside the ex parte judgement in the exercise of its appellate jurisdiction.

11. When the parties appeared before the Deputy Registrar for directions on 24th October 2017 they agreed to canvass the appeal through written submissions. The record shows that the Appellant filed his submissions on 22nd January 2018 whereas the Respondent filed his on 9th March 2018. The Appellant then filed a reply to the Respondent’s submissions on 16th March 2018. When the parties appeared in court for mention on 4th March 2019 they confirmed that they were ready to take a judgement date in consequence whereof the appeal was fixed for judgement on 4th July 2019.

12. It is doubtful if the Appellant could present a competent appeal against the ex parte judgement dated 21st December 2015 in view of the statutory limitation provided for filing appeals from the Magistrate’s court to the superior court. Section 79G of the Civil Procedure Act (Cap. 21) stipulates as follows on the timeline:

“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

13. Similarly, Section 16A of the Environment and Land Court Act, No. 19 of 2011 stipulates as follows:

“(1) All appeals from subordinate courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against in matters in respect of disputes falling within the jurisdiction set out in section 13(2) of the Environment and Land Court Act, provided that in computing time within which the appeal is to be instituted, there shall be excluded such time that the subordinate court or tribunal may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.

(2) An appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.”

14. There is no indication on record to show whether leave was sought and obtained to file an appeal out of time and when such leave was obtained with respect to the ex parte judgement dated 21st December 2015. However, since the Respondent did not raise the issue of limitation, the court shall not base its decision thereon.

15. The court is aware of its obligation and duty as a first appellate court. It has a duty to re-evaluate the entire evidence and material on record in order to satisfy itself as to the correctness of the decision of the trial court. The principles guiding a first appellate court were summarized in the case of Selle & Another V Associated Motor Boat Co. Ltd & Others [1968] EA 123 at p. 126 as follows:

“…Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.”

16. The court shall first consider the grounds of appeal in relation to the ruling of the trial court dated 4th July 2016. The court has noted that the Appellant’s submissions have gone into the merits of main suit before the trial court. The 1st and 2nd grounds of appeal essentially deal with the issue of service of court process. It was the Appellant’s contention that the trial court ought to have investigated the issue of service further and rule thereon before determining the application for removal of the caution.

17. The court has considered and re-evaluated the entire material on record and the reasons tendered by the trial court in its ruling dated 14th July 2016. The court has also considered the circumstances of the case and the nature of the application before the trial court. The court finds no error of law on the part of the trial court. The reasons given for allowing the application for removal of a caution were perfectly plausible. The Respondent had succeeded in the suit. He had a decree in his favour against the Appellant. There was no pending application for setting aside the judgement. There was no order for stay pending appeal in force at the time. There was surely no plausible reason why the application could not be allowed.

18. There is no way an application for setting aside an ex parte judgement can be made from the bar or through written submissions only. A submission for setting aside must be predicated upon an application for setting aside which is on record. It is surprising that even after the trial court hinted to the Applicant that his appropriate remedy lay in setting aside under Order 10 Rule 11 of the Civil Procedure Rules the Applicant did not pay attention. He simply proceeded in a different direction by filing the instant appeal.

19. The court shall now consider the grounds of appeal in relation to the ex parte judgment dated 21st December 2015. The main issue here is on service of court process. The Appellant denied having been served with the relevant court process. Lack of service of court process is a good ground for setting aside an ex parte judgement. Even where a party has been duly served with process and fails to defend a suit, the court still retains jurisdiction to set aside an ex parte judgement on such terms as it may deem just. See Girado Vs Alam & Sons (U) Ltd [1971] EA 448; Patel V E.A. Cargo Handling Ltd [1974] EA 75;andShah V Mbogo & Another [1967] EA 116.

20. However, the Appellant has opted for a totally unorthodox method of obtaining relief against an ex parte judgement. As far as this court is concerned, it is the trial court which in the first instance has jurisdiction to set aside such a judgement. The appellate court can only handle an appeal against a refusal to set aside such an ex parte judgement by the trial court.

21. It is clear from the material on record that the Appellant has never applied for setting aside of the ex parte judgement before the trial court. The material on record indicates that the Appellant was made aware of such a remedy by the trial court. The Appellant has instead asked this court through his written submissions to set aside the ex parte judgement dated 21st December 2015. This court will not accede to such request for reasons already stated.

22. The final aspect for consideration is whether on the basis of the material on record the trial court erred in entering judgement for the Respondent. The court has reviewed the entire evidence on record during the trial. The hearing proceeded ex parte hence the Respondent’s evidence was not challenged. In those circumstances, the trial court was perfectly entitled to believe the Respondent’s case in the absence of evidence to the contrary. The court is of the view that any reasonable court or tribunal properly directing itself on the material evidence on record would have arrived at the same determination as the trial court.

23. The upshot of the foregoing is that the court finds no merit whatsoever in the grounds of appeal set out in the memorandum of appeal dated 12th July 2016. Consequently, the appeal is hereby dismissed in its entirety without prejudice to the right of the Appellant to seek an appropriate remedy under Order 10 Rule 11 of the Civil Procedure Rules.Each party shall bear his own costs.

24. It is so decided.

JUDGEMENT DATED, SIGNEDand DELIVERED in open court at EMBU this4TH DAY ofJULY, 2019.

In the presence of Mr. Guantai holding brief for Mr. A.P. Kariithi for the Appellant and Mr. Andande for the Respondent.

Court Assistant Mr. Muinde

Y.M. ANGIMA

JUDGE

4. 07. 19