[2022] KEHC 13557 (KLR)

Mutua v Mutua (Civil Case E259 of 2021) [2022] KEHC 13557 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13557 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E259 of 2021

JK Sergon, J

October 7, 2022

Between

Daniel Mutua

Plaintiff

and

Grace Mutua

Defendant

Ruling

1)The plaintiff via an application dated February 1, 2022 sought the following order:i.That this honorable court be pleased to enter summary judgment against the defendant herein as prayed in the plaint.ii.That the costs of the application be provided for.

2)The respondent opposed the application via a replying affidavit dated May 23, 2022.

3)The plaintiff via his submissions states that a default judgment was entered on February 6, 2020 against the defendant to pay child support by the circuit court for the County of Wayne in Michigan, USA.He contends that despite being served with the notice of judgement, the defendant willingly refused to make any efforts towards the payment of child support.

4)He states that in the present suit, the defendant failed to file and serve a defence despite being served with summons. He cites the case of Harith Sheth T/A Harith Sheth Advocates v Sharma Charania [2014] eKLR where it was stated that;“this court stated that the purpose of the proceedings in an application for summary judgment is to enable a plaintiff to obtain a quick judgement where there is plainly no defence to the claims. To justify summary judgment, the matter must be plain and obvious and where it is not plain and obvious, a party to a civil litigation is not to be deprived of his right to have his case tried by a proper trial where, if necessary, there has been discovery and oral evidence subject to cross-examination. (See also Continental Butchery Ltd v Ndhiwa, (1989) KLR 573)”

5)Finally, the plaintiff further submits that the defendants filed a defence dated May 23, 2022 irregularly after this application had been filed and without leave of court and that the plaintiff will suffer prejudice would be denied the opportunity of enjoying the fruits of the judgement. He also submits that denying an order of summary judgement would be against the best interest of the child.

6)The defendant in her replying affidavit states that she was not aware of any divorce proceedings filed against her in the United States of America.

7)She states that she was never served with summons, demand, notice notifying her of the current suit and only came to read about it in the media post tagged by political competitors. She then contacted her advocates who advised her to enter appearance while she awaits service. Having not been served, her advocates tried to get hold of the alleged pleadings and upon perusal found that there was an affidavit of service that claimed to have forwarded the same to an email address she had stopped using for a due to a huge load of spam messages and threats.

8)She contends that her defense filed by her advocates does raise triable issues and prays that the defense be deemed as duly filed and that the application be dismissed with costs.

Analysis and determination 9)The main issue for determination is whether the court can grant summary judgement against the defendant herein. The conditions for granting a summary judgement are provided for in Order 36 rule 1 of the Civil Procedure Rules which states thus:i.In all suits where a plaintiff seeks judgment for-a.A liquidated demand with or without interest; orb.the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasserWhere the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.

ii.The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.iii.Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.Rule 2 provides thatThe defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit. 10)In this case, summons were served upon the defendant on November 1, 2021. The defendant entered appearance on December 6, 2021 but did not file a defence whatsoever. She contends that she had not been served with the pleadings and upon request for perusal by her advocates, realized that service had been effected through an email she no longer uses. She filed her defence, without leave, on May 23, 2022 after the application for summary judgment on February 1, 2022. This was nearly 6 months after she entered appearance.

11)In Sebel District Administration v Gasyali & Others [1968] EA 300, the court, observed that: -"in my view the court should not solely concentrate on the poverty of the applicant’s excuse for not entering appearance or filing a defence within the prescribed time. The nature of the action should be considered, the defence if one has been brought to the notice of the court however irregularly should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered, and finally I think it should always be remembered that to deny the subject a hearing should be the last resort of a court. It is wrong under all circumstances to shut out a defendant from being heard. A defendant should be ordered to pay costs to compensate the plaintiff for any delay occasioned by the setting aside and be permitted to defend.”

12)The defendant has a right to a fair hearing as envisaged in the Constitution of Kenya . Since the defence was already filed, it is upon the court to check whether it raises any triable issues, if at all summary judgement is to be granted. Denying the defendant audience would be denying her the right to a fair hearing.

13)In determining the conditions for granting summary judgment, the court in Job Kwach v Nation Media Group Ltdheld follows: -“Before the grant of summary judgment the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner. What then is a defence that raised no bonafide triable issue. A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black’s Law Dictionary defines the term “triable” as “subject to liable to judicial examination and trial.” It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the court.” [own emphasis

14)The issue in contention in this suit is the enforcement of a foreign judgement.Section 9 of the Civil Procedure Act provides for the cases when a foreign judgment provides as follows: -“A foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title except:a)where it has not been pronounced by a court of competent jurisdiction;b)where it has not been given on the merits of the case;c)where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable;d)where the proceedings in which the judgment was obtained are opposed to natural justice;e)where it has been obtained by fraud; orf)where it sustains a claim founded on a breach of any law in force in Kenya.”

15)The court in the case of ABSA Bank Uganda Limited (Formerly Known as Barclays Bank of Uganda Limited) v Uchumi Supermarkets PLC (Civil Case E316 of 2020) [2021] KEHC 14 (KLR) (Commercial and Tax) (9 September 2021) (ruling) held thus concerning the enforcement of foreign judgments.“Under common law, the onus will be on the plaintiff seeking to enforce the foreign judgment to prove the competence of such court to assume jurisdiction although that evidentiary burden may shift during the trial. The general requirements for enforcement of foreign judgments can be summarized as follows: -a.The foreign judgment must be final and have no conflict with prior judgments.b.A foreign judgment is final for enforcement purposes even if an appeal is pending against it in the foreign jurisdiction.c.The judgment of a foreign court that cannot be enforced by execution in that state’s court cannot be enforced by a Kenyan court.d.The foreign court must have had jurisdiction over the defendant. Jurisdiction is confirmed if the cause of action arose within the jurisdiction of the foreign court, if the defendant voluntarily submitted to the court’s jurisdiction or if he resided there or had a place of business there, or where the matter is contractual the contract was substantially performed in the country of that court.e.The defendant must have been given notice of the court proceedings against him in conformity with the rules of natural justice and due process of law. Notice should be given in conformity with the laws of that foreign court.f.The foreign judgment must not be contrary to Kenyan public policy. Anything inconsistent with the Kenyan domestic laws, morality and sense of justice or national interests will be deemed contrary to Kenyan public policy.g.The foreign judgment is only enforceable within six years of the date of judgment or six years after the last judgment where there may have been appeals from the original judgment.”

16)The court, upon ascertaining that the above conditions have been met, need not delve into the substantive issues of the case as they were already heard and determined in the competent foreign court. The court only has to ascertain that due procedure was followed before recognizing and enforcing the foreign judgement.

17)The defendant avers that she was not privy to any divorce proceedings against her and was not served with any notice, demand or court summons to the same. In addition to this, the defendant deposes that she was not served with the present application and only became aware of it after her advocates were served with a mention notice. There is an affidavit of service on record deposed by one Kivusu Amos Matambu. He avers that he received the application on May 20, 2022 and served it upon the defendant through her advocates via email.

18)It is apparent that sufficient notice was not accorded to the defendants given that the suit was fixed for mention on the same day they were served with the application. Order 36 rule 3 of the Civil Procedure Rules, requires that at least seven days’ notice be given to the defendant to accord him/her time to show cause.

19)The rules of natural justice entail that a person be granted adequate notice of proceedings against him/ her and the right to adduce and challenge evidence. This was the position in Geothermal Development Company Limited v Attorney General & 3 Others [2013] eKLR where it was held that:“20. Article 47 enshrines the right of every person to fair administrative action. Article 232 enunciates various values and principles of public service including “(c) responsive, prompt, effective, impartial and equitable provision of services” and “(f) transparency and provision to the public of timely, accurate information.”...

28. As a component of due process, it is important that a party has reasonable opportunity to know the basis of allegations against it. Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to present a response. This right is not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well.”

20. As held in the ABSA Bank Uganda Limited (Formerly Known as Barclays Bank of Uganda Limited) v Uchumi Supermarkets PLC case above, the onus of proving the competence of the foreign court and the legality of the proceedings lies on the plaintiff. I find that the plaintiff needs to furnish the court with the proof that he indeed notified the defendant of the foreign court’s proceedings and the current application. Without that, the court cannot grant summary judgement.

21. In the end, I find the plaintiff’s application to be without merit, it is dismissed with parties bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ...................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant