[2022] KEHC 16531 (KLR)

Muri Mwaniki & Wamiti Advocates v Monarch Insurance Company Ltd (Miscellaneous Application 170 of 2018) [2022] KEHC 16531 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16531 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application 170 of 2018

RB Ngetich, J

December 15, 2022

Between

Muri Mwaniki & Wamiti Advocates

Applicant

and

The Monarch Insurance Company Ltd

Respondent

Ruling

1. This is a ruling Notice of Motion dated September 4, 2020 seeking the following prayers;a.Spent.b.That the firm of M.W. Muli & Co. Advocates be allowed to come on record for the Respondent /appellant.c.Spent.d.That the ex-parte judgment entered by this Honourable court on February 13, 2019 and all consequential orders be set aside.e.That the Respondent /Applicant be granted leave to defend this suit and file their submission within 14 days.f.The cost of the application be in the cause.

2. The application is premised on the grounds that the Defendant/applicant is dissatisfied with the costs against him on February 13, 2019 and seeks to set aside the ex-parte judgment. That he has a good defence which raises triable issues. The applicant is apprehensive the Respondent will commence execution proceedings as there is no stay of execution. That the applicant will suffer prejudice if the orders are not issued.

3. The application is supported by the annexed affidavit sworn by Leah Muithiraniah. She averred that the applicant has been condemned unheard; that the applicant upon receiving the bill of costs misfiled the same and as a result, no counsel was appointed to defend the matter. She further contends the sister matter CMCC No. 171 of 2018 was taxed at affair sum and judgment herein was brought to her attention months after the certificate of taxation was already issued and contend that the bill of costs has not been taxed in accordance to the Advocate Remuneration order.

4. In response to the application, Martin G. Mwaniki filed the replying affidavit sworn on May 16, 2022 in which he deposed the application is overtaken by events as the client was informed of the bill of costs and orders of setting aside the ex-parte judgment and defend the suit are unattainable. He averred that the application is aimed at delaying the matter. He further stated that the applicant was duly served with the bill of costs and the ruling notice but failed to take action.

5. The Respondent averred that the certificate of taxation was forwarded to the applicant’s counsel who failed to respond prompting the Respondent to file the application dated October 23, 2019 seeking judgment.

6. That when the application came up for hearing on February 20, 2022, the Applicant indicated to the court that it was willing to settle the matter and sought leave of the court to respond to the application but failed to. That the applicant served the application dated September 4, 2020 upon the respondent on 7th April 2022 and stated that the application dated September 4, 2020 is incompetent, bad in law and an abuse of the court process.

7. Directions were taken to have the application canvassed by way of written submissions. Only the applicant complied with the directions.

Applicant’s Submissions 8. Counsel for the Applicant filed submissions on July 15, 2022 and submitted that the procedure of filing a reference or objection to the taxing officer is applicable to parties who participated in the taxation and are aggrieved by the decision of the taxing master.

9. He submitted that the issue in contention is whether the applicant was condemned unheard and is entitled to setting aside of the judgment. Counsel submitted that there is reasonable ground advanced for the failure of the applicant to participate in the taxation proceedings.

10. Counsel further submitted that Order 10 Rule 11 of the Civil Procedure Rules empowers the court to set aside or vary judgment and or any consequential orders and the Respondent has not demonstrated that it stands to suffer irreparable loss which cannot be compensated through costs and urged the court to allow the application, set aside the ex-parte judgment of February 13, 2019 and allow the applicant to participate in the taxation proceedings.

Analysis And Determination 11. I have considered the ground of the application, averments in affidavits filed and the submissions filed by the applicant. The issues for determination are:a.Whether the firm of M. Muli should come on record?b.Whether reliefs sought should be granted.(a)Whether the firm of M. Muli should come on record?

12. Order 9 Rule 9 and 10 of the Civil Procedure Rules provides;-Rule 9. When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.Upon an application with notice to all the parties; orb.Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.Rule 10. An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.

13. The firm of M.Muli has sought the leave of the court to come on record for the applicant. The same has not been contested. In the circumstances I do not find any reason to disallow the prayer to come on record. The firm of M. Muli is allowed to come on record for the applicant.(b)Whether reliefs sought should be granted

14. From the record, the retainer and the engagement of the Respondent as counsel for the applicant has not been disputed. What is disputed is the amount taxed by the taxing master. The Applicant contends it was not involved in the taxation process. Though service has not been denied, the Applicant contends service of the bill of costs was done but there was delay in filing the said bill of costs by its advocates which in advertently lead to non-appearance and representation in court.

15. The bill of costs was taxed by Hon. Rading on January 17, 2019 at Ksh 543, 854. 28/=. The certificate of taxation was served upon the applicant on April 15, 2019. The applicant failed to take action and the Respondent filed an application seeking judgment which was entered on September 23, 2019 for the taxed amount. On September 4, 2020, the applicant filed the current application on ground that it was condemned unheard.

16. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another Civil Appeal No. 6 of 2015 [2016] eKLR the court of appeal outlined the principles to be considered in setting aside a regular default judgment as follows: -“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of theCivil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment”.

17. The court’s main concern when faced with an application to set aside a default judgment is to ensure that justice is done to the parties. In the words of Kneller JA in Pithoni Waweru Maina v Thuka MugiriaCivil Appeal No. 27 of 1982 [1983] eKLR stated as follows: -“The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or errors, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to abstract or delay the cause of justice.”

18. The applicant faults their Advocates for the misfiling and resultant failure to participate in the taxation proceeding and urges this court to set aside the certificate of taxation dated February 13, 2019 and all a consequential order. On the other hand, the Respondent contends if the Applicant is aggrieved by the decision of the taxing master and ought to file a reference, which the applicant has not done so.

19. Article 50 gives every Kenyan the right to be heard and in view of the fact that the applicant never got the opportunity to be heard by the taxing master, I will allow the application to set aside and allow the Respondent throw-away costs.

Final Orders: -1. The firm of M. W. Muli & Co. Advocates are allowed to come on record for the Applicant.2. The ex-parte judgment entered on February 13, 2019 and consequential orders are set aside.3. Throw away costs of kshs 30,000/= to be paid by the Applicant to the Respondent within fourteen (14) days from the date of this ruling.4. The bill of costs dated September 10, 2018 is remitted back to the taxing master.5. Failure to comply with order 3 above, order 2 to stand discharged.6. No orders as to costs of this application.RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF DECEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantsMr. Gaya for Applicant