[2022] KEHC 16197 (KLR)

Mwananchi Credit Limited & another v Muigai (Civil Case 57 of 2018) [2022] KEHC 16197 (KLR) (Civ) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16197 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 57 of 2018

JN Mulwa, J

December 8, 2022

Between

Mwananchi Credit Limited

1st Plaintiff

Dennis Mwangeka Mombo

2nd Plaintiff

and

Annerlisa Muigai

Defendant

Ruling

1. A brief background of this matter is that the plaintiffs instituted this suit against the defendant vide a plaint dated March 21, 2018 seeking inter alia general, punitive, exemplary and aggravated damages for defamation. Subsequently, an interlocutory judgment in default of appearance and/or defence was entered in the matter on September 13, 2018 and thereafter, the matter proceeded to formal proof on April 8, 2019 before Justice Githua. On November 14, 2019, Justice Githua delivered a final judgment in which she allowed the plaintiffs’ suit and awarded the 2nd Plaintiff general damages in the sum of Kshs. 2,500,000/- together with interest from the date of judgment until payment in full. Orders of prohibitory and mandatory injunctions were also issued and costs awarded.

2. Subsequently, this court issued a decree dated October 26, 2020 in respect of the said judgment. On February 25, 2022, the Plaintiffs obtained Warrants of attachment and sale of moveable property for execution of decree. The total amount to be executed as per the said Warrants were Kshs 3,399,148. 45. Thereafter, the Plaintiffs through their agents Samumu Auctioneers attempted to proclaim and attach the defendant’s movable property.

3. Vide a notice of motion dated May 26, 2022 brought pursuant to Order 10 Rule 11 and Order 22 Rule of the Civil Procedure Rules, sections 1A, 1B and 3A and 34 of the Civil Procedure Act, the defendant approached this court seeking the following orders:1. Spent.2. Spent.3. That pending the inter-partes hearing of this suit the court be pleased to grant stay of execution of the judgment and decree of this court issued on the October 26, 2020 and the ensuing warrants of attachment of movable property in execution of decree for money issued to Samumu Auctioneers on February 25, 2022. 4.That the court be pleased to set aside judgment and decree issued against the defendant herein and grant leave to the defendant to file a defence and be heard in the suit.5. That the cost of this application be borne by the 2nd Plaintiff.

4. The application is supported by the defendant’s affidavit sworn on May 26, 2022.

5. In opposition, the plaintiffs filed a replying affidavit sworn on July 15, 2022 by the 2nd plaintiff in his position as a director of the 1st Plaintiff.

6. The court has carefully considered the application, the parties respective affidavits in support and in opposition of the application and their respective written submissions. The main issue for determination whether the defendant has made out a case for the setting aside of the final judgment of November 14, 2019 and the subsequent decree of October 26, 2020.

7. In determining this issue, this court is first enjoined to determine whether the formal proof proceedings were regular? The answer to this question lies on whether or not the interlocutory judgment of September 13, 2018 was regularly entered. The Court of Appeal inJames Kanyiita Nderitu & Another v Marios Philotas Ghikes & Another [2016]eKLR, the court laid down the distinction between an interlocutory judgment that was entered regularly and irregularly as follows:“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 the Civil 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, among other. See Mbogo & Another v Shah (supra), Patel v EA Cargo Handling Services Ltd (1975)EA 75, Chemwolo & Another v Kubende [1986] KLR492 and CMC Holdings v Nzioki [2004] 1 KLR 173).In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v Attorney General[1986-1989] EA 456).” [Emphasis added]

8. In the present case, the defendant contends that she only became aware of this suit on May 24, 2022 when her tenant who resides at Pyramid Valley Estate in Lavington called her and informed her that there were some auctioneers who were attempting to access the house and who served upon them a proclamation notices and warrants of attachment of movable goods. It is also her contention that affidavit of Service sworn by a process server known as Peter Mburu Waithaka on January 7, 2019 is a fraud and bears false witness. This is because she does not have a place of business at Dusit D2 where the said Peter allegedly effected service of the documents relating to this suit upon her on October 28, 2018.

9. The 2nd Plaintiff on his parts avers that the defendant is being dishonest by denying that she has a place of business at Dusit D2. He avers that prior to this suit, the 1st Plaintiff instituted HCCC No 357 of 2017: Mwananchi Credit Limited v Anerlisa Muigai aka Annalisa W Muigai against the defendant and service of the summons to enter appearance and the Plaint therein were effected upon the defendant at the same address where the documents relating to the instant suit were served. He states that the said address is clearly scribbled on the face of the annexed copy of Plaint filed in HCCC No 357 of 2017. He noted that following the said service, the defendant through her lawyers on record, filed a memorandum of appearance and a defence in the earlier suit hence it is safe to conclude that the defendant was equally well aware of the instant suit but chose not to respond.

10. The court record shows that on September 7, 2018, the Plaintiffs’ advocates filed an affidavit of service sworn by a process server known as Peter Mburi Waithaka on August 2, 2018 in regard to service of summons to enter appearance and the Plain. At paragraph 3 thereof, the Deponent avers that he went to the defendant’s Offices at NERO Company Limited, located off Riverside Drive on the 5th floor of the building known as Dusit D2, for purposes of effecting service. This address is repeated in several other affidavits of Service sworn by the said process server and filed in court in respect to this suit. The court has also seen the copy of the Plaint filed in HCCC No. 357 of 2017 which is annexed to the 2nd plaintiff’s replying affidavit as annexture “DMM1”. The following words are scribbled on the face of the said Plaint: “served upon Anerlisa Muigai at Riverside Drive, 14 Riverside Belgravia 5th floor on August 31, 2017 at 12. 50 pm.”

11. In the court’s view, the address indicated on the face of the copy of the plaint is clearly different from the address on which the court processes relating to this matter were served on the defendant. Dusit D2 building and Belgravia are two different buildings even just by their names. The defendant’s assertion that she has never been made of this suit therefore holds true meaning that the interlocutory judgment of September 13, 2019 was irregularly entered. In the premises, the court finds that the formal proof proceedings and all the consequential orders which include the final judgment of November 14, 2019, decree of October 26, 2020, the warrants of attachment and sale as well as the proclamation notices were all irregular and should be set aside ex debito justiciae.

12. That being the case and in line with the pronouncement inJames Kanyiita Nderitu & Another v Marios Philotas Ghikes & Another [supra],it would be irrelevant to delve into whether the defendant’s draft defence raises triable issue.

13. The upshot is that the defendant’s notice of motion dated May 26, 2022 is merited and is hereby allowed in the following terms:a.The default interlocutory judgment entered herein on September 13, 2020 and all consequential proceedings and orders are hereby set aside.b.The defendant shall file and serve her statement of defence within twenty one (21) days from the date of this ruling.c.The defendant is awarded the costs of this application.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 8TH DAY OF DECEMBER 2022. J.N. MULWAJUDGE