[2022] KEHC 10845 (KLR)

Ogot v Onsoko Limited & 5 others (Commercial Case E472 of 2020) [2022] KEHC 10845 (KLR) (Commercial and Tax) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10845 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Tax

Commercial Case E472 of 2020

WA Okwany, J

June 9, 2022

Between

Atieno Ogot

Plaintiff

and

Onsoko Limited

1st Defendant

Brian Nobert Lobulwa Bintutu

2nd Defendant

Rodgers Ambwere Musaviri

3rd Defendant

Nicholas Nzioki Mutuku

4th Defendant

William Njoroge Ndirangu

5th Defendant

Henry Ambwere

6th Defendant

Ruling

1. This ruling determines the application dated 30th September, 2021 wherein the defendants/applicants seek orders that: -a.That the Honourable court be pleased to asset aside the interlocutory judgement and the matter be re-opened for full trial.b.That the Applicants be granted unconditional leave to file defence out of time and to comply with the Order 11 of the Civil Procedure Rules and proceed with the suit to a full trial.c.That the costs of the application be in the cause.

2. The Motion is supported by the grounds on its face and the Supporting Affidavit of the applicants' advocate who avers that he promptly prepared a Notice of Appointment and defence together with a Replying Affidavit in response to the plaintiff’s case ready for filing. He states that the pleadings were however inadvertently not uploaded for filing in time through the mistakes of the office staff thus leading to the request and entry of interlocutory judgement against the Applicants. He states that the applicants should not be punished for the mistakes of their advocates,

3. It is the applicants’ case that they have a strong defence to the plaintiff's case as demonstrated by the collapse of the plaintiff's application and the annexed draft defence. The applicant’s counsel contends that throughout the hearing up to the ruling of the plaintiff's application, he honestly and strongly believed that he had filed the defence until 29th September 2021 when the matter came up for mention for compliance when he was informed that there was an interlocutory judgement against the Applicants herein.

4. The applicants’ counsel further avers that the plaintiff did not serve them with the Notice of entry of Judgement by the Plaintiff before seeking date for formal proof. He adds that it would be just, fair and equitable for the applicants to be allowed to defend the claim herein as no prejudice shall be occasioned to the plaintiff if orders sought are granted.

5. The plaintiff opposed the application through her replying affidavit sworn on 2nd November wherein she avers that the Application is fatally incompetent, vexatious, hopeless, and only fit for dismissal. She further avers that the Application does not meet the legal threshold for the setting aside of an interlocutory judgement.

6. It is the plaintiff’s case that the defendants were duly served with the Summons to Enter Appearance and that they duly entered appearance on 2nd December 2020 and also responded to the plaintiff's application but failed to file their defence within the requisite time.

7. The plaintiff contends that the alleged inadvertent mistake by the applicants’ advocate is not a legitimate and/or justifiable ground for the setting aside of the interlocutory judgment given that it has taken over eight months to realize the non-compliance.

8. Parties canvassed the application by way of written submission, which I have considered. The main issue for determination is whether the application meets the threshold set for the granting of orders to set aside an interlocutory judgment.

9. The law governing the setting aside of exparte interlocutory judgment in default of appearance and defence is provided for under Order 10 Rule 11 of the Civil Procedure Rules (CPR) which stipulates 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.

10. In Patel v Cargo Handling Services Ltd [1974] EA 75 the court held as follows: -“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 conditions on itself to fetter the wide discretion.”

11. Courts have the discretionary power to set aside ex parte judgment with the main consideration being that justice should prevail. In an application to set aside interlocutory judgment, the court is not required to consider the merits of a defence as long as it raises triable issues. In Patel v E.A. Handling Services Ltd (1974) EA 75 and Tree Shade Motor Ltd v D.T. Dobie Co. Ltd CA 38 of 1998 and Mania v Muriuki (1984) KLR 407 the courts held that the discretion of the court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.

12. In Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubede (1982-1988) KAR, the Court 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”

13. It is also trite that a litigant should not suffer due to a mistake of its Counsel. This was the position taken in Lee G. Muthoga v Habib Zurich Finance (K) Ltd & Another, Civil Application No. Nair 236 of 2009 where it was held that:-“It is widely accepted principle of law that a litigant should not suffer because of his Advocate’s oversight.”

14. In the case Winnie Wambui Kibinge & 2 Others v Match Electricals Limited Civil Case No. 222 of 2010 the Court held that:-“It does not follow that just because a mistake has been made a party should suffer the penalty of not having his case heard on merit.”

15. In the instant case, the applicants’ advocate conceded that inadvertence on the part of his office staff in failing to upload the defence in the court’s e-filing portal alongside other pleadings led to the entry of default judgment. I have perused the draft defence, and I am of the view that it raises triable issues. I also note that the applicants’ advocates successfully opposed the plaintiff’s application dated 27th October 2020 prior to the entry of the impugned interlocutory judgment on 27th August 2021 thus lending credence to the applicants’ claim that the defence was inadvertently not uploaded at the time the replying affidavit to the said application was filed. I find that in the circumstances of this case, it would be in the interest of justice, if the parties were heard fully on the merit of their respective claims. I however suggest that the matter should be heard expeditiously in order that justice is seen to be done. None of the parties should further delay the matter unnecessarily. In order to fast-track the hearing of the matter and in the interest of justice and the parties, I hereby set aside the interlocutory judgment entered on 27th August 2021 in the following terms: -a)The Defendants’ statement of defence shall be deemed to be properly filed and served upon payment of the requisite Court filing fees;b)The Applicant shall serve the said statement of defence and counter claim within 7 days of this order;c)In default of compliance with order given in (i) and (ii) then the order vacating the interlocutory judgment shall automatically lapse without further reference to the to Court;d)In view of the fact that this Application arose out of the inadvertence of the Advocate representing the Applicants, it is only fair that they bear the consequences thereof; in that regard, I order that the said advocates to pay the Plaintiff’s costs of this Application.e)The matter be set down for case management conference on priority basis.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JUNE 2022. W. A. OKWANYJUDGEIn the presence of: -Ms Katana for PlaintiffMr. Ojuo for Defendants.Court Assistant- Sylvia