[2022] KEHC 3117 (KLR)

Langat & another v Muchai (Civil Appeal 73 of 2020) [2022] KEHC 3117 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3117 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 73 of 2020

JM Ngugi, J

May 5, 2022

Between

Claire Cherop Langat

1st Appellant

Carol Sore

2nd Appellant

and

Jane Njeri Muchai

Respondent

(This was an Appeal for the Judgment/Decree of Hon. B. Kalo, Chief Magistrate, delivered on 05/03/2019 in Nakuru CMCC No. 189 of 2018)

Judgment

1. The Respondent filed Nakuru CMCC No 189 of 2018 seeking special damages, general damages, costs, and interest arising from a road traffic accident that allegedly occurred on October 7, 2017 involving Motor Vehicle Registration No KBA 425K. From the Lower Court’s record, the Appellants neither entered appearance nor filed a Defence. A Judgment in Default was entered against them on May 15, 2018. On 05/3/2019 and after formal proof the Lower Court (Hon. B Kalo) entered Judgment in favour of the Respondent as follows:a)Liability 100%b)General Damages …………Kshs. 150,000c)Special damages………..Kshs. 10,000d)Costs of the suite)Interest on b) and d) at court rates from the date hereof until payment in full and interest on c) from the date of filing suit until payment in full.

2. The Appellants then filed an application dated March 15, 2019 primarily requesting for the ex parte judgment, all trial proceedings, and any other consequential orders against the Appellants be set aside and that the matter be fixed for full hearing. The Application also sought for leave for the Appellants to file their defence. In the interim, the Appellants sought for stay to give them time to prosecute the Application.

3. In their grounds in support of that Application in the Lower Court and in the Affidavit of Claire Cherop Langat - the 1st Appellant herein, the Appellants claimed that the 1st Appellant was neither served with the Summons to enter Appearance nor a Notice of entry of judgement. She also stated that she had only learnt about the suit from her diligent clerk who saw her name on the cause list. She therefore considered herself condemned unheard in the absence of service.

4. It was also her deposition that their Defence raised triable issued and that the Application had been made promptly and was made in good faith.

5. The Respondent opposed that application. In her Affidavit dated April 6, 2019, she deponed that the Appellants had been served with the Summons to Enter Appearance and Plaint but either ignored and/ or chose not to act. She also deponed that upon the entry of an interlocutory Judgment and taking a date for formal proof, a Hearing Notice was served upon Directline Insurance Co. Ltd, who were the insurers of the subject motor vehicle.

6. She deposed of her belief that the Appellants’ advocates on record had been instructed by the said Insurer and entered appearance on 26/09/2018. She denied the possibility that the Appellant’s clerk had seen the matter on the Cause list since neither that clerk nor what happened had been disclosed. She also deponed that a Notice of Judgment had been sent to the Appellants and a demand for payment sent to the insurer and the Appellant’s advocates on record.

7. It was her deposition that the application had been filed on 18/03/2019 and the Draft Defence did not raise any triable issues, given that the Accident had not been self-involved. According to the Respondent, the Appellants had not given any good reason for why no action had been taken while the case was pending, and the grant of the application would cause her great prejudice.

8. The Application was canvassed by way of written submissions and after hearing both parties, the Lower Court dismissed the application with costs to the Respondent. In its ruling dated April 14, 2020, the Learned Magistrate reached the conclusion that the Appellants had not discharged the Burden of that (sic) the averments in the affidavit of service are incorrect. It was also the Learned Magistrate’s reasoning that since the accident was self-involving and the Respondent did not play any part in causation, the annexed Defence would not stand any much scrutiny.

9. The Appellants being dissatisfied with the impugned ruling , filed the instant appeal vide the Memorandum of Appeal dated 25/08/2021 seeking the following prayers:I.That the Appeal herein be allowed with costs to the AppellantsII.That this Honourable Court be pleased to re-evaluate, re-look and/or re-consider the Appellants’ application dated 15/3/2019 and set aside and/or vary the learned magistrate’s Orders by substituting the same with proper findIII.That the costs of this appeal be borne by the Respondent.

10. The Appeal is on the following groundsa.That the learned trial Magistrate erred in law and fact in dismissing the Appellant’s application dated 15/3/2019 without any legal justification.b.That the learned trial magistrate erred in law and in fact in failing to evaluate the appellants' draft statement of defence and appreciate that it raises triable issues.c.That the learned trial magistrate erred in law and fact in failing and/or ignoring to consider the Appellants' written submissions and legal authorities relied on in response) to the issues raised in the application hence arriving at an erroneous decision in the circumstances.d.That the learned trial magistrate erred in law and fact by over-relying on the Respondent's written submissions and legal authorities relied on hence arriving at an erroneous decision in the circumstances.e.That the learned trial magistrate's decision albeit a discretionary one was plainly wrong in the circumstances.

11. The Appeal was canvassed by way of written submissions. The Appellants submission are dated August 24, 2021. They submit that their application was based on the strength of their draft defence. They cite the case of David Kiptanui Yego & 134 others v Benjamin Rono & 3 others[2021] eKLR, where the Court listed the factors to consider when setting aside an ex-parte judgment and the need for the Court to look at the draft defence to see if it contained a valid or reasonable defence.

12. The Appellants also submit that the Affidavit of Service relied upon by the Trial Court in dismissing the Application was not proper as it lacked proper details of service to the Appellants. They urge the Court to consider Order 5 Rule 7 of the Civil Procedure Rules before the 2020 amendments, which they say required summons to be effected on each Defendant either personally or through a duly authorised agent. They ask that the Court set aside the Ex-parte Judgment dated 05/03/20219 and that the matter be heard and determined on its merits.

13. On the issue of costs, they cite the provisions of Section 27 of the Civil Procedure Act and ask that the Respondent pay costs.

14. The Respondent’s submissions are dated October 5, 2021. The Respondent agrees with the Trial Magistrate’s finding and dismissal of the application dated July 24, 2019; specifically, the Respondent agrees with the finding that service was properly effected on the Appellants.

15. The Respondent contends that despite the Appellants having entered appearance on 26/09/2018, they did not take any steps to set aside the interlocutory judgment until 18/03/2019. According to the Respondent, this is meant to obstruct justice since the Appellants only came to Court after the threat of execution. The Respondent argues that the Application dated March 15, 2019 can therefore not be said to have been brought promptly since it was filed six months after the Appellants entered appearance. The Respondent cites the case of Mbogo v Shah [1967] EA 116 and submits that the Appellants should not benefit from the Court’s discretion to set aside an ex-parte Judgment.

16. On whether the Draft Defence raises triable issues, the Respondent submits that the same is a general denial which does not raise any triable issues. The Respondent relies on the case of Sameer Africa Limited v Aggarwal & Sons Limited [2013] eKLR.

17. The singular question for determination is whether the ex parte judgment entered in favour of the Respondent was regularly so entered and whether it should be set aside.

18. There is no question that this Court, and the Court below, have wide discretion to set aside an ex parte judgment. The starting point is the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act. These provisions require the Court to focus on substantive justice, rather than procedural technicalities when administering justice. They also require that Courts ensure that cases are disposed of in a just, efficient, proportionate, and expeditious manner.

19. Order 10, of the Civil Procedure Rules, 2010, addresses the issue of consequences of non-appearance, default of defence and failure to serve by a party. Order 10, Rule 4 empowers Courts to enter interlocutory judgment in cases where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages while Rule 9 permits the Plaintiff to set down a suit for hearing where no appearance is entered for other suits not provided for by Order 10. Order 10, Rule 10 provides that in cases where a defendant has failed to file a defence, Rules 4 to 9 shall apply with any necessary modification. Finally, Rule 11 empowers the court to set a side or vary a judgment that has been entered under Order 10.

20. Hence, the Court can set aside an ex parte judgment for good cause. The Court is usually guided by three large-picture considerations: The first is a judicial policy that as much as possible the Court should determine cases on their substantive merits rather than technicalities as commanded by Article 159 of the Constitution. The second one is the judicial policy that venial errors of inattentiveness or ephemeral inaction occur and are a part of normal life and where they so occur, it is inappropriate, absent a showing of bad faith, to punish a litigant for such errors by driving them from seat of justice permanently. The third consideration is a corollary to the second: it is that the Court will, however, not utilize its discretion to benefit a litigant who is acting in bad faith and merely aims to prolong litigation or otherwise delay its resolution.

21. Cases decided even before the Constitution of Kenya, 2010 were in accord. For example, the two leading authorities in this area are: Patel v EA Handling Services Ltd [1974] EZ 75 and Tree Shade Motor Ltd v DT Dobie Co. Ltd CA 38 of 1998 and Mania v Muriuki [1984] KLR 407. In both cases, the Courts held that the discretion of the Court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error by a litigant by setting aside a judgment entered ex parte where the litigant has demonstrated that he or she has triable issues raised in a Draft Defence.

22. In all cases, however, the Courts are careful to distinguish between cases where an ex parte judgment was irregularly entered and where there is a regular judgment. Where a judgment was irregularly entered, the Defendant is entitled to an order setting aside as a matter of justice. However, where the judgment was entered regularly, the Court is required to exercise its discretion guided by the above considerations. Hence, in case Mwala v Kenya Bureau of StandardsEALR [2001] 1 EA 148, where the court stated:….[T]o all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.”

23. In the present case, the Appellant’s claim that the judgment was irregular because, they claim, they were not served with the Summons, Plaint and hearing notice for the formal proof. They claim that they only became aware of the suit “through due diligence by a clerk who saw [the 1st Appellant’s name] in the Court’s causelist.” The Appellants, therefore, claim that they were condemned unheard.

24. The Learned Trial Magistrate considered this argument and dismissed it. He was satisfied that service had been effected and that the affidavit of service filed was bona fides. I have carefully looked at the Court record. I am unable to disagree with the Learned Trial Magistrate on this finding. I note that, first, a detailed Affidavit of Service was filed indicating how the Appellants were served. The Appellants responded to that detailed affidavit of service by the bald denial in paragraph 4 of the 1st Appellant’s Supporting Affidavit to the effect that: “…I was not served with summons to enter appearance and Notice of Entry [of] Judgment and as such, due process of the law was faulted.”

25. This rather curious phraseology of the denial of service betrays what I consider its disingenuousness. Its generality is telling. Its structure – including its inactive, third person voice speaks as well. But most of all, the failure of the Appellants to call Process Server to cross examine him on the claimed service is most loquacious. If, indeed, the Appellants were truthful that they had not been served with the suit papers, we would not only expect more specific denials but also efforts to demonstrate the falsity of the filed Affidavit of Service.

26. The disingenuousness of the alleged lack of service is further exhibited by the claim by the 1st Appellant that she only became aware of the suit “through due diligence by a clerk who saw my name in the court cause list.” Whose clerk is credited with this clairvoyance? The sentence implies that it is the 1st Appellant’s clerk. The oddity of that implication is too obvious: Matatu owners do not usually have clerks who routinely perform due diligence of scrutinizing Court cause lists. The more likely implication, then, is that the clerk is from the Appellants’ law firm. If so, then the narrative announces rather loudly its own pretext: the law firm could not have been appointed to act for the Appellants before the Appellants had been served with the suit papers! How else would the law firm have known that the Appellants are their clients in this particular suit?

27. From this analysis, therefore, only one conclusion is reasonable: the Appellants were, indeed, served with the suit papers. The judgment was, therefore, regular. Should it, then, not be set aside anyway if the Appellants can demonstrate that they have raised triable issues in the Draft Defence?

28. I answer the question in the negative for two reasons. First, as I have demonstrated above, the Appellants have acted disingenuously and in bad faith and have, therefore, not brought themselves within the purview of the Court’s discretion. The Appellants would have fared better if they had owned up to excusable errors – either theirs or their Insurance Company’s – rather than bad faith trumped up allegations of non-service. A litigant who fails to be candid with the Court does not deserve the Court’s discretion being deployed to her benefit. Such a litigant has already abused the Court’s process and does not deserve to benefit from its discretionary authority. The Appellants, here, are merely seeking to delay or obstruct justice and the Court should not countenance it. See Shah v Mbogo & Another (1966) EA 116 which is in accord.

29. Second, like the Learned Trial Magistrate, looking at the Draft Defence, I am not persuaded that it raises triable issues. In short, the Draft Defence raises the defence of contributory negligence of the Respondent. At paragraph 4, the Draft Defence particularizes the alleged contributory negligence by the Respondent. This theory of defence appears merely pretextual when one considers that the Respondent was a fare-paying passenger in the subject motor vehicle when the accident occurred. As the Learned Trial Magistrate concluded, it appears to be an exercise in deep sea fishing to float a defence theory of contributory negligence – especially when to proffer the theory it would require the heavy work of first setting aside a regularly entered judgment.

30. The upshot, then, is that the Appeal herein is wholly unmeritorious. It must be dismissed in entirety and I hereby so do.

31. The Appellants will also pay the costs of the appeal.

32. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 5TH MAY, 2022. ...............................JOEL NGUGIJUDGE