[2022] KEHC 10428 (KLR)

Maina & another v Nyang'ya (Suing as the Legal Representative and Administrator to the Estate of Elijah Mwaniki Kinuthia (Deceased) (Civil Appeal 18 of 2020) [2022] KEHC 10428 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10428 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 18 of 2020

AN Ongeri, J

June 17, 2022

Between

Anthony Mwangi Maina

1st Appellant

Joseph Munene Maina

2nd Appellant

and

Davinah Kwamboka Nyang'ya (Suing as the Legal Representative and Administrator to The Estate of Elijah Mwaniki Kinuthia (Deceased)

Respondent

(Being an Appeal from the Ruling of Hon. Kimanga (SRM) in Kericho CMCC No.39 of 2019 delivered on 30/6/2020)

Judgment

1. The Appellants herein Anthony Mwangi Mainaand Joseph Munene Maina(hereafter referred to as the Appellants) were sued by the Respondent Divinah Kwamboka Nyang’ya(Suing as the Legal Representative of the Estate of Elijah Mwaniki Kinuthia(Deceased) hereafter referred to as the Respondent in Kericho CMCC. No.39 of 2019.

2. The Respondent was seeking damages both under the Law Reform Actand the Fatal Accidents Actfor Fatal Injuries sustained by the deceased Elijah Mwaniki Kinuthia when he was involved in an Accident along Kericho-Kisumu Road while driving Motor Vehicle Reg. No. KBB 409X owned by the Defendants.

3. The Defendants were served with the summons to enter appearance but they failed to enter appearance or file a defence.

4. The case proceeded Exparte and on 16/10/2019 Exparte Judgment was entered in favour of the Respondent against the Defendants/Appellants in the following terms:-Special damages - 171,650/=Damages for pain and suffering - 10,000/=Loss of Expectation of life - 50,000/=Loss of Dependency - 1,600,000/=TOTAL AWARD - 1,831,650/==========

5. The Defendant/Appellants subsequently filed an Application dated 20/11/2019 seeking amongst other Orders to set aside the Exparte Judgment and leave to file a Defence.

6. The Trial Court delivered a ruling on 30/6/2020 dismissing the application for lack of merit.

7. The Defendant/Appellants have now appealed to this court against the dismissal of the said Application on the following grounds:-i.Thatthe trial magistrate erred in law and fact in dismissing the application for staying of execution of the ex parte judgment delivered against the Appellantii.Thatthe learned trial magistrate erred in law and fact in dismissing the application for stay of execution and disallowing the filing of defence.iii.Thatthe learned trial magistrate erred in law and fact in failing to appreciate that if service of the pleadings was not properly done and ex parte judgment delivered, then this was not a ground to dismiss the application for stay and filing of defence.iv.Thatthe learned trial magistrate erred in law and fact in failing to appreciate that the draft defence raised triable issues with a high chances of successv.Thatthe ruling of the learned trial magistrate is in the circumstances unfair and unjust and irregular and should not be allowed to stand.

8. The Appeal was canvassed by way of written submissions. The parties filed written submissions which I have duly considered.

9. The Appellants submitted that the trial magistrate misdirected himself in ruling that there was proper service of summons and notices thereby wrongfully dismissing the Appellants’ application.

10. The Appellants contended that they were disputing service as it was effected upon the second defendant for himself and on behalf of the 1st Defendant, whereas, order 5 rule 7 of the Civil Procedure Rulesrequires that in cases where there are more than one defendant, service shall be effected on each defendant personally.

11. The Respondents stated that they effected substituted service via post, however, the Appellants contended that they had not sought to leave of the court to effect substituted service.

12. The Appellants submitted that the trial magistrate misdirected himself in ruling that the Appellants’ defence did not raise triable issues.

13. The Appellants reiterated that the defence raised triable issues, namely that there was negligence on the part of the deceased, the vehicle was driven without the authority of the Appellants’ and further to this the Appellants were contending the date, manner and place of the accident.

14. The Appellants reiterated that their defence did not contain mere denials rather it raised pertinent triable issues. They cited the case of Daniel Kiptanui Yego & 134others vs. Benjamin Rono & 3others eKLR [2021].

15. The Appellants submitted that the impugned ex parte judgment was made on 16/10/2019 and they made the application to set aside the ex parte judgment on 25/11/2019, therefore, there was no undue delay in making the application. They cited the case of of Mwala vs. Kenya Bureau of Standards EA LR (2001) 1 EA 148 whereby the court made a distinction between a regular and irregular ex parte judgment.

16. The Respondent submitted that the instant appeal was devoid of merit as the Respondent instituted Kericho CMCC No. 39 of 2019 against the Appellants on 28/1/2019, the Respondents subsequently filed a request for judgment after the Appellants failed to enter a Memorandum of Appearance and a Defence within the time stipulated by the law despite being served with summons to enter appearance.

17. The Respondent further submitted that the trial court being satisfied with the affidavit of service of summons to enter appearance and plaint, properly directed itself on issues of law and fact in endorsing the request for judgment and allowing the matter to proceed for formal proof and judgment was subsequently entered.

18. The Respondent reiterated that the assertion that the Appellants were not aware of the proceedings herein amounted to falsehoods and was tantamount to a violation of the overriding objective principles. Further to this, the Respondent stated that allowing the appeal, setting aside a judgment of the court validly entered and ordering a hearing de novo amounted to double work.

19. The Respondent submitted that the appeal was made in bad faith, the appellants did not tender any security and /or any proposal as required by the law on how to cater for the insurmountable prejudice suffered by the Respondent.

20. The Respondent submitted that it is trite law that in cases of regular judgments such as Kericho CMCC No. 39 of 2019 the court will usually not set aside the judgment unless it is satisfied that there is a defence on the merits. The Respondents were adamant that the draft defence filed alongside the application dated 25/11/2019 was a sham, frivolous, lacked merit, did not raise triable issues and amounted to mere denials.

21. The issues for determination in this appeal are as follows;i.Whether the Trial Court ought to have set aside the ex parte judgment.ii.Whether the draft defence raises triable issues.iii.Whether the Appeal should be allowed.iv.Who pays the costs of the Appeal?

22. On the issue as to whether the ex parte judgment ought to have been set aside by the Trial Court, I have considered the ruling dated 30/6/2020 and I find that the Trial Court made a finding that the judgment was regular since the appellants were served with summons to enter appearance but failed to enter appearance or file a defence and further they were also served with the hearing notice but failed to appear in court for the hearing of the case.

23. The application before the Trial court was brought under Section 1A and 1B of the Civil Procedure Act which states as follows:-“1A(1)The overriding objective of this Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act”.(2)The Court shall, in exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.1B For the purpose of furthering the overriding objective specified in section 1A, the court shall handle all matters presented before it for the purpose of attaining the following aims- (a) the just determination of the proceedings; (b) the efficient disposal of the business of the court; (c) the efficient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and (e) the use of suitable technology.”

24. In Hunker Trading Company Limited vs. Elf Oil Kenya Limited[2010] eKLR the Court of Appeal observed that the overriding objectives otherwise known as the “O2 principle” operate as a double edged sword and stated as follows; “Perhaps, it is appropriate for us to observe that litigants and their advocates should note that in “O2 principle”, they have a powerful ally where they are advancing its aims and a powerful adversary where they are bent on subverting its aims.”

25. I find that the judgment entered herein is regular.

26. One of the factors to be considered in an application for setting aside an ex parte judgment is whether the judgment is regular.

27. I find that in the current case, the judgment is regular since the Appellants were properly served and the Affidavits of Service filed in court.

28. I find that It is not in dispute that Mr. Kagunza Advocate called the appellants and served them in his office. The Appellants did not dispute the number used to call them for service.

29. The other issues to consider in an application to set aside an exparte judgment are as follows:-i.Whether there is a defence that raises triable issues.ii.Whether the Application was filed within reasonable time andiii.Whether the Respondent will suffer prejudice that cannot be compensated by an award of damages.

30. Although I find that the application was filed within reasonable time, the Trial Court found that the draft defence was a mere denial that did not raise triable issues. The Appellants did not demonstrate that they had a defence on merit.

31. I accordingly find that the appeal herein lacks in merit and I dismiss it.

32. On the issue of costs, it is trite law that costs follow the event. I order that the Appellants pay the Respondent the costs of this appeal.

33. I find no reason to interfere with the ruling made by the Trial Court.

34. I accordingly uphold the findings of the Trial Court.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17THDAY OF JUNE, 2022A. N. ONGERIJUDGE