[2023] KEHC 24766 (KLR)

Oile v Murai (Commercial Case E927 of 2021) [2023] KEHC 24766 (KLR) (Commercial and Tax) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24766 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E927 of 2021

MN Mwangi, J

October 13, 2023

Between

Eunice Bella Akini Oile

Plaintiff

and

Eva Cecilia Bjerborn Murai

Defendant

Ruling

1. The defendant/applicant filed a Notice of Motion application dated 1st December, 2022, pursuant to the provisions of Article 159 of the Constitution of Kenya, 2010, Order 10 Rule 11, Order 45 Rule 1(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21 Laws of Kenya and all other enabling provisions of law seeking the following orders –i.That the Honourable Court be pleased to certify this application urgent and having so certified the application, to hear the same ex parte in the first instance;ii.That the Honourable Court be pleased to stay and/or arrest the intended execution by the plaintiff pursuant to the decree dated 28th November, 2022 pending the hearing and determination of this application;iii.That this Honourable Court be and is hereby pleased to vary or set aside the interlocutory judgment entered on 23rd February, 2023 pending the hearing and determination of this application;iv.That the Honourable Court be pleased to grant the defendant/applicant leave to file her Notice of Preliminary Objection, Statement of Defence & Counter-claim, list of documents, list of witnesses, witness statement out of time to defend the case presented against herself by the plaintiff/respondent (sic);v.That the Honourable Court be pleased to deem the annexed Notice of Preliminary Objection, Statement of Defence & Counter-claim, list of documents, list of witnesses and witness statement as duly filed;vi.That the Honourable Court be pleased to set down this matter for hearing to enable both parties be accorded a fair trial; andvii.That the Honourable Court do make any such order or further orders as it may deem fair and just in the interest of justice.

2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on 1st December, 2022, by Eunice Bella Akini Oile, the defendant herein. In opposition thereto, the plaintiff filed grounds of opposition dated 20th December, 2022 raising the following grounds of opposition –i.The application is incompetent, misconceived, bad in law, incurably defective and devoid of any merit in view of its contents together with the supporting affidavit;ii.The defendant/applicant has not produced before Court any proper reason as to inform the grant of the orders sought and therefore cannot establish a prima facie case with a probability of success or that she will suffer an irreparable injury (sic);iii.That the application as framed do not (sic) disclose a reasonable cause of action against the defendants herein and is an abuse of the process of this Honourable Court;iv.As held by the Court of Appeal in Nabro Properties v Sky Structures [2002] KLR 299 no one is allowed to base his claim on his own wrong. The application is based on the defendant/applicant’s own wrongs taking the form of failing to file a defence in time despite having knowledge of the suit, attending Court sessions several times and still failing to file the defence out of time when leave was granted by the Deputy Registrar;v.The defendant/applicant is guilty of non-disclosure of material facts- namely that she was aware of the fact of filing of the suit, participated in the proceedings before judgment was entered and had previously sought and was granted leave to file a defence out of time but still failed to do so and it is when the leave expired that the judgment was entered;vi.This application being made after evidence have been led (sic) in the defendant/applicant’s application dated 30th March 2022 which was analogous to the instant one and was dismissed on 14th November, 2022 are inherently barred for attempting to appeal against the Court’s own decision in the same Court and greatly prejudicial to the plaintiff/respondent’s right of access to justice;vii.The said application is aimed at putting the clock back and reopening matters which ought to have been canvassed in the defendant/applicant’s application dated 30th March, 2022 which was heard and dismissed by this Honourable Court;viii.That the orders sought under the application are untenable and the orders sought thereunder are based on a grave misconception and distortion of law and facts;ix.That the instant application is just one of the tools being employed by the defendant/applicant to delay justice to the plaintiff/respondent owing to their frivolous filings as demonstrated in the Court file;x.That the application is tantamount to trifling with the Court and is an abuse of the process of this Honourable Court.

3. The application herein was canvassed by way of written submissions. The defendant’s submissions were filed on 14th February, 2023, by the law firm of Musyoki, Mogaka & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Aguko, Osman & Company Advocates on 11th May, 2023.

4. Mr. Omari, learned Counsel for the defendant cited the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 and Sections 1A and1B of the Civil Procedure Act and submitted that Courts are guided by the said provisions in administering justice, the focus being on substantive justice and the just, efficient and expeditious disposal of cases rather than procedural technicalities. He referred to the provisions of Order 10 Rule 11 of the Civil Procedure Rules, 2010 and stated that it empowers the Court to set a side or vary a judgment that has been entered under Order 10 of the said Rules.

5. Counsel contended that in applications of this nature, Courts have the discretionary power to set aside an exparte judgment and they will not impose conditions on themselves to fetter the wide discretion given to it by the Rules. He expressed the view that Courts are not required to consider the merits of a defence when dealing with applications such as the instant one. To this end, he relied on the cases of Patel v E.A. Handling Services Ltd [1974] EZ 75, Tree Shade Motor Ltd v D.T. Dobie Co. Ltd [1998] eKLR and Maina v Muriuki [1984] KLR 407, where the Courts held that the discretion by a Court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.

6. He stated that the Court’s power to set aside an interlocutory judgment is exercised with a view of doing justice between the parties and not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice. He further stated that one of the key factors to consider when setting aside an exparte judgment especially in instances wherea regular judgment has been entered is whether the defendant has a defence on merit. Mr. Omari cited decisions in the case of Sebei District Administration v Gasyali & others [1968] EA 300 and Tree Shade Motor Limited v DT Dobie Co Ltd (supra).

7. Counsel relied on the case of Lee G. Muthoga v Habib Zurich Finance (K) Ltd & Another, Civil Application No. Nai 236 of 2009 and stated that the general principle is that an applicant should not suffer due to a mistake of its Counsel. He explained that in this case, the defendant’s Advocates on record have taken full responsibility for failure to file a defence within the stipulated time as there was confusion and misunderstanding. Mr. Omari referred to the Court of Appeal case of Thorn PLC v Macdonald [1999] CPLR 660 and the case of Mohamed & Another v Shoka [1990] KLR 463, where the Courts set out the tenets to be considered when dealing with an application to set aside an interlocutory judgment.

8. In relying on the case of Wachira Karani v Bildad Wachira [2016] eKLR, Counsel asserted that the defendant has demonstrated sufficient reasons for the delay in filing a defence to the plaintiff’s suit against her and the reasons for the confusion in filling the said defence. He stated that the defendant’s Notice of Preliminary Objection and statement of defence and counterclaim raise triable issues, which if not litigated upon, will prejudice the defendant. He submitted that it would be in the interest of justice for the default judgment entered on 23rd February, 2022, and the decree dated 28th November, 2022 to be set aside and for the defendant to be granted leave to file and serve her Notice of Preliminary Objection and Statement of Defence and Counter-claim.

9. Mr. Aguko, learned Counsel for the plaintiff submitted that the defendant has not met the requirements for setting aside the exparte judgment, as she has no bonafide defence to merit the exercise of this Court’s discretion in her favour. Counsel opined that the excuse given as to mistake of counsel is fictitious and unsubstantiated as absolutely no evidence has been presented before this Court in support of the said averment. He further submitted that save for the prayer for setting aside the exparte judgment, the other prayers sought in the application herein have already been canvassed and dismissed by this Court hence they are barred under the doctrine of res judicata under the provisions of Section 7 of the Civil Procedure Act.

10. Counsel contended that the interlocutory judgment entered on 23rd February, 2022, in favour of the plaintiff against the defendant was regularly entered as confirmed by this Court at paragraphs 23 and 25 of its ruling dated 14th November, 2022. He relied on the Court of Appeal case of Abdalla Mohamed & another v Mbaraka Shoka [1990] eKLR and stated that the instant application does not in any way meet the threshold set therein. Counsel contended that the defendant’s draft defence is a general document that contains mere denials thus raising no triable issues, and the application does not elicit a reasonable explanation for the delay in filing a defence to the plaintiff’s plaint. He also contended that it is evident that the defendant deliberately delayed in filing the necessary pleadings despite proper service of the plaint and its accompanying documents by the plaintiff, that she also delayed in appointing its current Advocates on record to represent her in this matter as they filed a Notice of appointment of Advocates dated 9th December, 2021.

11. It was submitted by Counsel that on 10th December, 2021, the defendant was granted 21 days to file a defence to the plaintiff’s suit but she did not do so until 24th February, 2022, after interlocutory judgment was entered against her on 23rd February, 2022. Counsel further submitted that the instant application is only meant to delay justice for the plaintiff, because despite the fact that the defendant was informed by the Court of the existence of the exparte judgment, she proceeded to file an application for enlargement of time within which to comply instead of filing an application to set aside the said judgment and file a defence out of time.

12. Mr. Aguko cited the case of R.J. Varsani Enterprises Limited v Chelsea Holdings Limited & 4 others [2019] eKLR and stated that even if it was true that the failure to file a defence was out of the mistake of the defendant’s Counsel, the said Counsel ought to have sworn an affidavit explaining the said mistake, which has not been done in this case. Counsel relied on the case of Neeta Gohil v Fidelity Commercial Bank Limited [2019] eKLR and contended that there is no mistake in this case that occasioned the defendant not to file a defence to the plaintiff’s suit within the stipulated timelines, and all that the defendant is attempting to do in making such an allegation is to mislead the Court. He stated that it cannot be an excusable mistake for Counsel to deliberately file an application that is unknown in law, despite knowing the position of the matter after being informed by the Court.

13. He referred to the case of Charles Omwata Omwoyo v African Highlands & Produce Co. Ltd [2002] eKLR and stated that the defendant has not explained the delay in filing the instant application since 23rd February, 2022, when interlocutory judgment was entered against her. Further, that any attempt in claiming that the said delay was occasioned by the defendant having filed the wrong application should not be accepted. Counsel for the plaintiff asserted that if the exparte judgement entered on 23rd February, 2022 is set aside, the plaintiff will suffer great prejudice in view of the fact that the suit herein was filed in November 2021 and setting aside the said judgment after more than one and a half years serves to delay justice, which is equivalent to justice being denied. He stated that the instant application was not filed promptly thus defeating the overriding objective of this Court to deliver justice expeditiously and in a timely manner.

14. It was stated by Counsel that the Notice of Preliminary Objection, Statement of Defence and Counter-claim, list of documents, list of witnesses and witness statement if allowed to be filed are only meant to cause prejudice to the plaintiff, embarrass and/or delay the fair trial of the dispute between the parties herein.

15. Mr. Aguko further stated that if this Court is inclined to set aside the exparte judgment entered on 23rd February, 2022, the defendant should be ordered to deposit in Court the entire decretal sum within seven (7) days of this ruling to act as security

Analysis And Determination. 16. I have considered the application filed herein, the grounds on the face of it and the affidavit filed in support thereof, the grounds of opposition by the plaintiff and the written submissions by Counsel for the parties. The issues that arise for determination are –i.Whether the application herein offends the provisions of Section 7 of the Civil Procedure Act; andii.If the instant application is merited.

17. In the affidavit filed by the defendant she deposed that her Advocates on record appeared in Court on 10th December, 2021, for mention and to take directions and the Court gave directions in the absence of Counsel for the plaintiff and scheduled the matter for case management on 24th February, 2022.

18. She averred that on the said date, her Advocates on record had not filed a defence but they had filed a Notice of Preliminary Objection dated 23rd February, 2023. That they sought for more time again in the absence of Counsel for the plaintiff to file the defendant’s defence and the Court granted them 30 days to do so. The defendant further averred that on 28th March, 2022, her Advocates on record filed a statement of defence and Counter-claim together with other accompanying documents.

19. It was stated by the defendant that this mater came up on 29th March, 2022, for another case management conference when the plaintiff’s Counsel attended Court and indicated that default judgment had already been entered against the defendant on 23rd February, 2022, and the Court granted the parties herein 30 days to put their issues in order.

20. The defendant stated that she filed an application dated 30th March, 2022 seeking an order for enlargement of time to file and serve her defence and Counter-claim to the plaintiff’s suit. The said application was dismissed vide a ruling dated 14th November, 2022, on the ground that there was a default judgment on record that had not yet been varied and/or set aside.

21. The defendant contended that the basis of the application dated 30th March, 2022, was that the Counsel who held brief for Mr. Omari misinterpreted and/or misunderstood the Court’s sentiments to mean that the defendant should file an application for enlargement of time to file and serve the defence and Counter-claim.

22. The defendant averred that there are good and sufficient reasons to warrant grant of the orders sought in the instant application as the agreement heavily relied on by the plaintiff offends the provisions of Section 4(1)(a) of the Limitation of Actions Act. She further averred that she is willing to deposit security with this Court to secure the judgment, if so required by the Court.

23. The defendant contended that the plaintiff does not stand to suffer any harm in the event the application herein is granted, and that the prayers sought herein are meant to protect her right to a fair hearing.

Whether the application herein offends the provisions of Section 7 of the Civil Procedure Act. 24. Section 7 of the Civil Procedure Act provides that –“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

25. In order for the doctrine of res judicata to be effectively invoked, the party raising it must satisfy the five essential elements of the doctrine, which are stipulated in conjunctive as opposed to disjunctive terms. The doctrine will apply only if it is proved that –i.The suit or issue raised was directly and substantially in issue in the former suit;ii.That the former suit was between the same party or parties under whom they or any of them claim;iii.That those parties were litigating under the same title;iv.That the issue in question was heard and finally determined in the former suit; andv.That the court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent suit.

26. From the above essential elements, it is evident that the doctrine ousts the jurisdiction of a Court to try any suit or issue which had been determined with finality by a Court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title. The plaintiff submitted that save for the prayer for setting aside the exparte judgment, the other prayers sought in the application herein had already been canvassed and dismissed by the Court hence the defendant is barred under the doctrine of res judicata pursuant to the provisions of Section 7 of the Civil Procedure Act.

27. I concur with Counsel for the plaintiff that save for the prayer for setting aside the exparte judgment, the other prayers sought in the instant application had been sought in the application dated 30th March, 2021. On perusal of the ruling delivered by the Court on 14th November, 2021 in respect to the said application, I however note that the Court did not determine the said issues with finality. The Court held that having found that that the default judgment was regular, the question of leave to file defence out of time has no basis as there exists a valid judgment which has not been set aside and or varied. The Court proceeded to strike out the said application.

28. This Court finds that the issue of leave being granted to the defendant to file a Notice of Preliminary Objection, Statement of Defence and Counter-claim, list of documents, list of witnesses and witness statement has never been heard and determined by any Court of competent and concurrent jurisdiction. As a result, the doctrine and/or defence of res judicata cannot be effectively raised and upheld in this case.

If the instant application is merited. 29. Order 10 Rule 11 of the Civil Procedure Rules, 2010 provides that -“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.”

30. At paragraph 23 of the Court’s ruling dated 14th November, 2022, the Court held that the default judgment entered by the Court on 23rd February, 2021 was regular. For the said reason, the said default judgment ought to be set aside before the Court can proceed to determine whether the defendant’s Notice of Preliminary Objection, Statement of Defence and Counter-claim, list of documents, list of witnesses and witness statement can be admitted to form part of the Court’s record.

31. I however note with utmost concern that the prayer for this Court to set aside the default judgment entered on 23rd February, 2021 sought as prayer No. 3 in the instant application, is prayed “pending the hearing and determination of the application herein”. In essence, this means that the said prayer is spent and cannot be granted by this Court at this juncture as it will lapse as soon as this Court delivers this ruling. The Court in the case of Catherine Njeri Macharia v Macharia Kagio & Another [2013] eKLR when faced with a similar situation made the following observation -“I accept and approve the holding by Hon. Justice Lesiit in HCCC No. 329 of 2003 Ano Shariff Mohammed Vs. Abdulkadir Shariff Abdirahim and Hon. Justice Fred Ochieng in HCCC No. 2047 of 2000 Wilfred O. Musingo Vs. Habo Agencies Ltd where my colleague judges were faced with applications seeking prayers similar in wording as in the instant application by the plaintiff. Justice Lesiit rendered herself as follows in the case referred to:“The prayer seeks a stay of execution of decree pending the hearing and determination of this application. The issue is that once the application is heard and determined then what. I do not think the prayer is worded correctly as the stay of execution should be prayed pending something other than the application itself. Considering this prayer and the manner it is worded, it is my view that the entire application is spent and that there remains nothing for me to stay”.For his part Hon. Justice Ochieng rendered himself thus: -“Now I revert to the orders sought by the Defendant. First it seeks an order of stay of execution pending the hearing and determination of this application. In other words, the very moment the court will have heard and determined the application dated 27thSeptember, 2005 there would be no orders for stay of execution. Therefore, even if I were to grant prayer 2 as prayed, it would lapse as soon as I finish reading this ruling. As on 28th October, 2005, I had already given an order staying execution until today.I hold that there is no need for the court to grant another order whose purport and effect would be the same as that which has already been given”.

32. It is evident that the application herein suffers from inappropriate drafting to the detriment of the defendant. This Court finds that the prayer to set aside the default judgment entered on 23rd February, 2021 having been spent, this Court cannot belabor on the same.

33. In view of the fact that the default judgment entered by this Court on 23rd February, 2021 is regular and has not been varied and/or set aside by a Court of competent jurisdiction, this Court cannot determine whether the defendant’s Notice of Preliminary Objection, Statement of Defence and Counter-claim, list of documents, list of witnesses and witness statement can be admitted to form part of the Court record and/or give orders to that effect.

34. In the circumstances, this Court finds that the application dated 1st December, 2022 was not properly drafted and it is hereby struck out with costs to the plaintiff.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 13TH DAY OF OCTOBER, 2023. NJOKI MWANGIJUDGE