[2023] KEHC 24671 (KLR)

Odhiambo v Mose (Civil Appeal E022 of 2022) [2023] KEHC 24671 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24671 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E022 of 2022

WA Okwany, J

November 2, 2023

Between

Cyprian Jairo Odhiambo

Appellant

and

Abel Mokaya Mose

Respondent

(Being an Appeal from the Ruling of Hon. W. C. Waswa – RM Nyamira dated and delivered on the 5th day of May 2022 in the original Nyamira CMC CC No. E024 of 2021)

Judgment

Introduction 1. The Respondent herein, Abel Mokaya Mose, was the Plaintiff before the Lower Court where he sued the Defendant/Appellant seeking inter alia, special damages for the damage caused to his motor vehicle following an accident that occurred on 1st August 2019.

2. The Appellant did not enter appearance or file a defence before the Lower Court thus leading to the entry of interlocutory and ex-parte judgment on 1st November 2021.

3. The Appellant then filed an application dated 12th April 2022 before the trial court seeking orders to set aside of the said interlocutory/ex-parte judgment. In a ruling delivered on 5th May 2022, the trial court dismissed the said application thus setting the stage for this appeal.

Appeal 4. The Appellant filed this appeal challenging the ruling of 5th May 2022 and listed the following grounds of appeal: -1. The Learned Magistrate erred in fact and in law in failing to find that the Appellant’s application dated 12th April, 2022 is merited and dismissing the same.2. The Learned Magistrate erred in fact and law in denying the Appellants and opportunity to come on record in the matter and defend themselves in the lower court which is against the Appellants constitutional rights.3. The Learned Magistrate erred in fact and in law in failing to find that the Appellant’s application dated 12th April, 2022 is merited and dismissing the same hence leaving the Appellants exposed to execution.4. The Learned Magistrate erred in fact and law in finding that the Respondent was entitled to proceed with execution of the judgment therein without granting the Appellant’s and opportunity to be heard despite the fact that the Appellant was not served with summons.

5. The appeal was canvassed by way of written submissions which I have considered.

6. The Appellant submitted that the dismissal of his application to set aside the interlocutory judgment was not justified as it denied him the right to a fair hearing yet he had advanced plausible reasons for the setting aside besides his position that his defence raises triable issues. It was the Appellant’s case that an order to set aside the ex-parte judgment would not prejudice the Respondent in any way. He referred to the decision in Philip Kiptoo Chemwolo and Mumias Sugar Co. Ltd v Augustine Kubende (1982 – 1988) 1KAR 1036 where the Court of Appeal held that a court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon terms that are just.

7. The Respondent, on his part, maintained that the trial court arrived at the correct finding in dismissing the Appellant’s application as the Appellant did not contest that he was properly served with the pleadings. He further submitted that the Appellant did not explain the 1-year delay in filing the application to set aside the ex-partejudgment.

8. It was submitted that the Appellant’s application/defence did not raise any triable issues since the Appellant’s insurer had settled two other related matters.

9. It was the Respondent’s case that the trial court properly exercised its discretion to dismiss the application upon finding that proper service of pleadings was effected on the Appellant.

10. The Respondent cited the decision in Gikundi Kauruko v Tharachi M’Emara[2007] eKLR where it was held that: -“… the applicant’s application to set aside the exparte judgment was dismissed on 22nd August, 2006. The appeal herein was filed promptly on 30th August, 2006, but the application for stay filed 10 months after the dismissal. That constitutes unreasonable delay. …Finally, the applicant makes no offer to abide by any orders as to security. The application must fail and is dismissed.”

11. I have carefully considered the Record of Appeal and the parties’ respective submissions.

12. The main issue for determination is whether the instant appeal is merited.

13. The appeal is centered on the issue of whether the trial court was justified in rejecting the Appellant’s application to set aside the interlocutory ex-parte judgment.

14. Order 10 Rule 4 (1) and (2) of the Civil Procedure Rules stipulates as follows: -4(1)Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.(2)Where the plaint makes a liquidated demand together with some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the Court shall, on request in Form No. 13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of costs shall await judgment upon such other claim.

15. Order 10, rule 11 of the Civil Procedure Rules, on the other hand provides that ex-parte interlocutory judgment in default of appearance or defence may be set aside, it states as follows: -“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

16. A simple reading of the above provisions shows that a court has the discretion to set aside a default judgment. In the case of Patel v EA Cargo Handling Services Ltd (1974) EA 75, the Court held that:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules, the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”

17. In Kenya Commercial Bank Ltd v Nyantange &Another (1990) KLR 443 Bosire J, (as he then was) held that: -“Order IXA rule 10 of the Civil Procedure Rulesdonates a discretionary power to the court to set aside or vary an ex-parte judgment entered in default of appearance or defence and any consequential decree or order upon such terms as are just.”

18. The principle that emerges from the above cited cases is that the discretion of a court to set aside or vary ex-parte judgment entered in default of appearance or defence is a free one and is intended to be exercised to avoid injustice or hardship but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice. This was the position that was adopted in Rayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd [2018] eKLR where the court listed the matters to be considered in the exercise of this discretion as follows:-i.the defendant has a real prospect of successfully defending the claim; orii.it appears to the court that there is some other good reason why;iii.the judgment should be set aside or varied; oriv.the defendant should be allowed to defend the claim.

19. In the case of Rahman v Rahman (1999) LTL 26/11/9, the court considered the nature of the discretion to set aside a default judgment and concluded that the elements the judge had to consider were: the nature of the defence, the period of delay (i.e., why the application to set aside had not been made before), any prejudice the claimant was likely to suffer if the default judgment was set aside, and the overriding objective.

20. In Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubede (1982-1988) KAR, the Court of Appeal held that: -“The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties. Kimani v MC Conmell(1966) EA 545 where a regular judgment had been entered the court would not usually set aside the judgment unless it was satisfied that there is a triable issue.”

21. A perusal of the record shows that interlocutory judgment was entered against the Appellant herein on 30th September 2021 after he failed to enter appearance. The case then proceeded for formal proof after which judgment was on 1st November 2021 entered in favour of the plaintiff/respondent for special damages of Kshs. 299,550 together with costs. As I have already stated in this ruling, the Appellant’s application to set aside the judgment was rejected by the lower court thus precipitating the filing of this appeal. The said application was filed on 12th April 2022, at least 7 months after the entry of the interlocutory judgment.

22. My finding is that the 7 months’ delay in filing the application to set aside the interlocutory judgment was not only inordinate but was also not explained by the applicant who merely attributed the delay to an unnamed insurer. I however note that the applicant did not present any material to show that he actually had correspondence with the unnamed insurer.

23. I am not persuaded that the applicant made out a case before the trial court for the granting of the discretionary orders to set aside the interlocutory judgment. My considered opinion is that the reasons advanced by the applicant for the delay were not plausible.

24. In Rayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd (supra) the Court stated as follows on the subject of delay: -“It’s an old adage that, justice delayed is justice denied and that justice is weighed on a scale that must balance. Therefore, as much as the Court is obligated to promote the provisions of article 159(2)(d) of theConstitutionof Kenya, 2010 and uphold substantive justice against technicalities, the law must protect both the Applicant and the Judgment Creditor for justice to be seen to be done. Even then a mistake by a Counsel is not a technicality. In the same vein the provisions of section 1A and 1B of the Civil Procedure Act obligates the parties to assist the Court in the expeditious disposal of cases.”

25. My above findings on the issue of delay notwithstanding, I am, purely in the interest of justice, still minded to exercise my discretion so as to grant the applicant a reprieve by granting him a chance to be heard more so considering the fact that the suit involves a liquidated sum. This reprieve will however not be granted without any conditions on the part of the applicant who has clearly been indolent in his handling of the case. My line of thinking is bolstered by the decision in Rayat Trading case (supra) where the Court held that: -“If the court sets aside a default judgment, it may do so on terms. In most cases the defaulting defendant will be ordered to pay the claimant’s costs thrown away. In addition, the Court may consider imposing a condition that the defendant must pay a specified sum of money into court to await the final disposal of the claim.”

26. Regarding the respondents’ argument that the defence does not raise any triable issues as other related cases have been settled, I find that the mere fact that other claims have been settled cannot deprive the applicant of the chance to defend his case as each case will be determined on its own merit. I note that the draft defence does not contain an unequivocal admission of debt but raises issues that the court can only adjudicate upon after hearing the main suit. Owing to the nature of the case, which appears to be a straightforward claim for material loss incurred as a result of an accident, I direct that the matter be heard expeditiously so that justice is not delayed any further.

27. Having regard to the findings and observations that I have made in this ruling, I find that the instant appeal is merited and I therefore allow it in the following terms: -i.That the interlocutory and ex parte judgment entered on 30th September 2021 and 1st November 2021 respectively are hereby set aside on the following conditions:a.That the defendant/applicant shall within 30 days from the date of this ruling, deposit the entire decretal sum in court as security to await the final determination of the case.b.The applicant shall file and serve the statement of defence within 7 days from the date of this ruling.ii.In default of compliance with order given in (i) (a) and (b) hereinabove, the order vacating the interlocutory judgment shall automatically lapse without further reference to the to Court, in which case, the Respondent herein will be at liberty to proceed with the execution.iii.The matter shall be set down for case management and hearing before the lower court on priority basis.iv.I grant thrown away costs to the Respondent.

28. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 2ND DAY OF NOVEMBER 2023. W. A. OKWANYJUDGE