[2022] KEHC 15585 (KLR)

Murai v Oile (Commercial Case E927 of 2021) [2022] KEHC 15585 (KLR) (Commercial and Tax) (14 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15585 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case E927 of 2021

DO Chepkwony, J

November 14, 2022

Between

Eva Cecilia Bjerborn Murai

Plaintiff

and

Eunice Bella Akini Oile

Defendant

Judgment

1. Eunice Bella Akini Oile hereinafter referred to as the “applicant” moved this court by way of a Notice of Motion application dated March 30, 2021, brought under the provisions of Sections 3A and 95 of the Civil procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The application sought for the following Orders;a.Spent;b.That pending the hearing and determination of this application ex-parte, the Honourable Court be and is hereby pleased to grant the Defendant/Applicant leave to file and serve the Defence and counter-claim out of time.c.That the Defence and Counter-claim dated March 28, 2022 be deemed as dully filed and served.d.That this HonourableCcourt be pleased to set this matter for hearing on priority basis.e.That costs be provided.f.That the Honourable Court do make any such other or further orders as it may deem fair and just to grant in the interest of justice.

2. The application is grounded on the grounds on the face of the Motion plus the annexed affidavit of Eunice Bella Akini Oile of even date.

3. The grounds are that on December 10, 2021 the applicant’s advocate on record appeared to take directions and the court gave directions and scheduled the matter for case management on February 24, 2022.

4. By February 24, 2022 Applicant’s advocate had not filed Defence and Counter-claim however the advocate had filed a Notice of Preliminary Objection dated February 23, 2022.

5. The Applicant’s advocate sought more time in the absence of counsel for the Respondent to file Defence and Counter-claim and other accompanying documents and the court granted 30 days.

6. The applicant stated that the Firm of Musyoki Mogaka & Company advocates went further and filed the Defence and counter-claim without leave of this Court. The applicant also stated that the delay occasioned is not so inordinate or so great as to be excusable.

7. The application is opposed by the Respondent vide a Replying Affidavit dated May 24, 2022 sworn by Eva Cecilia Bjerborn Murai.

8. The Respondent avers in the affidavit that the suit was filed on November 24, 2021 and served upon the Applicant on December 7, 2021.

9. The Respondent deposed that on December 9, 2021, the Firm of Musyoki Mogaka & Company advocates filed their Notice of appointment.

10. She deposed that as at February 22, 2022 the Defendant/Applicant was yet to file their statement of defence which prompted the Respondent to file an application for entry of Judgment.

11. The Respondent avers that on February 23, 2022, the Court allowed the application and entered an interlocutory Judgment against the Applicant.

12. On February 24, 2022, the applicant filed a Memorandum of appearance and Notice of Preliminary Objection and later on March 30, 2022, the current application allegedly seeking extension of time within which to file defence despite their knowledge of the fact that an interlocutory judgment has already been entered.

13. The Respondent avers that the correct criteria to revive a matter which Judgment has already been entered is sequentially and threshold set out in law must be met for the order of setting aside Judgment to issue.

14. The instant Notice of Motion application is misplaced and superfluous as there is no more claim to be defended with the issuance of the interlocutory judgment on February 23, 2022.

15. Despite the applicant learning of the Judgment having been entered on February 23, 2022, she slept until March 30, 2022 to come up with this application whose sole objective is to just lengthen the life of this dispute.

16. The Respondent deposed that the Application is with no merit and it’s meant to obstruct justice and delay expeditious disposal of this matter and hence the same should be dismissed with costs.

17. The application was canvassed by way of written submissions. The Applicant’s submissions are dated July 8, 2022 while the Respondent’s submissions are dated July 22, 2022.

18. I have considered the written submissions by both parties in support and in opposition to the application alongside the cited authorities.

Analysis and determination 19. I have considered the application dated March 30, 2022 and the issues for determination are as follows;i.Whether the interlocutory judgment entered is regular?ii.Whether this court should grant the applicant leave and admit the defence and counter-claim as being properly on record?

20. On the first issue, I will start by outlining the law governing interlocutory Judgment which is provided for under Order 10 rule 4 of the Civil Procedure Rules which basically 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. Rule 9 of the same provision gives the Plaintiff an opportunity to set down the suit for hearing where no appearance is entered. Order 10 rule 10 provides that in cases where a defendant has failed to file a defence, rules 4 to 9 shall apply. Rule 11 on the other hand empowers the court to set aside or vary a Judgment that has been entered under Order 10.

21. A perusal of the record shows that the Plaintiff filed a request for Judgment dated February 18, 2022 which was endorsed by this court on February 23, 2022. The record also shows that on February 24, 2022 the matter was mentioned before the Deputy Registrar and Counsel for the Defendant sought for 30 days to comply.

22. On whether a Judgment is regular, the court in the case of Mwala vs Kenya Bureau of Standards EALR (2001) 1 EA 148, held as follows;“To 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. The default Judgment entered by this Court is therefore regular and ought to have been set aside and or varied before the Applicant could proceed to file the application to admit the defence and Counter-claim out of time. I can describe the conduct by the Applicant as putting the cart before the horse. It is therefore my considered view that the Plaintiff complied with all the requirements regarding default Judgments before the same was endorsed by this Court.

24. Turning to the second issue on whether this Court should grant the Applicant leave and admit the defence and counter-claim as properly on record, I wish to rely on the case of Thayu Kamau Mukigi vs Francis Kibaru Karanja (2013) eKLR, the court stated as follows:“On the second prayer of the Defendant that he be granted leave to file his defence and counter claim, I will be guided by the principles elucidated in the case of Tree Shade Limited -v- DT Dobie Co. Ltd. CA 38/98 where the court held that when an exparte Judgment was lawfully entered the court should look at the draft defence to see if it contained a valid or reasonable defence.”

25. Having found that the default Judgment was regular, the question of leave to file defence out of time has no basis as there exists a valid Judgment which has not been set aside and or varied.

26. In the circumstances of the foregoing, I am inclined to strike out the Notice of Motion application dated March 30, 2022 with costs to the Respondent.

It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OFNOVEMBER, 2022. D O CHEPKWONYJUDGEIn the presence of:Mr Mabuka holding brief for Mr Aguko counsel for Plaintiff/RespondentM/S Mungwi holding brief for Mr Danstan Omari counsel for Defendant/ApplicantCourt Assistant - Godfrey| HCCOMM. NO.E927 OF 2021 JUDGMENT - Page8of8