[2022] KEHC 920 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

CIVIL APPEAL NO. E177 OF 2020

PAUL HILLARY ADAWO..............................................................................................APPELLANT

-VERSUS-

ERICK OMONDI OMBEWA

(Suing as Legal Representative of JOYCE AGNES EPRONG (deceased)).............RESPONDENT

(Being an appeal from the ruling of Makau, PM delivered on 14th August, 2020

in Nairobi CMCC No. 8350 of 2019)

JUDGMENT

1. This appeal emanates from the ruling delivered on 14th August, 2020 in Nairobi CMCC No. 8350 of 2019. On 13th November, 2019,Erick Omondi Ombewa, (hereafter the Respondent) filed a suit in the lower court against Paul Hillary Adawo (hereafter the Appellant) seeking damages in respect of an accident that allegedly occurred on 10th August, 2019, involving the Appellant’s motor vehicle registration number KCK 729Dand the Joyce Agnes Eprong (deceased) along Mihango Road, Embakasi. It was averred that Appellant being the driver so carelessly, negligently and or recklessly drove, managed and or controlled his motor vehicle that he caused it to knock down the deceased, thereby killing her instantly.

2. Summons to enter appearance were served upon the Appellant on 18th December 2019. Default interlocutory judgment was entered against the Appellant on 9th January 2020, upon a request by the Respondent, the Appellant having failed to enter appearance or file defence within the prescribed time. The matter was thereafter set down and proceeded to formal proof hearing on 28th January, 2020, after which judgment was delivered in favour of the Respondent on 14th February, 2020, awarding him damages in the sum of Kshs. 3,826,550/-, plus costs and interest.

3. The Appellant on 5th March 2020 moved the lower court vide a motion expressed to be brought under Section 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules, seeking that the ex-parte judgment and all consequential orders be set aside and the Appellant be granted leave to file the memorandum of appearance and defence out of time. The grounds on the face of the motion were amplified in the supporting affidavit of Philomena Theuri, who described herself as the Legal Claims Manager at Jubilee Insurance Co. Limited,and who at the material time were the Appellant’s insurers.

4. She deposed that summons to enter appearance were served upon the Appellant who in turn immediately forwarded them to the insurer for purposes of appointing counsel to conduct the defence. That unfortunately, the summons was misplaced at the insurer’s offices before dispatch to the lawyers, and it was not until 25th January, 2020 that the summons were traced and instructions issued to counsel to come on record. She further deposed that counsel then discovered that the suit had already proceeded ex-parte, and judgment rendered on 14th February, 2020 and a decree issued. It was also the deponent’s assertion that the Appellant had a meritorious defence that raised triable issues as per the attached draft defence, and the Appellant ought not to be condemned unheard; that the failure to enter appearance was not deliberate. The trial court was asked to exercise its unfettered discretion to set aside the ex-parte judgment.

5. The Respondent opposed the motion through a replying affidavit dated 21st July, 2020, and thereafter parties canvassed motion by way of written submissions. In a ruling delivered on 14th August, 2020 the trial Court dismissed the motion, provoking the instant appeal which is based on the following grounds:

“1. THAT the learned magistrate erred in law and applied the wrong principles in arriving at the conclusion that the Appellant had not demonstrated a reasonable excuse for default of appearance and that their defence did not raise triable issues at all.

2. THAT the learned magistrate erred in law and principle in arriving at the conclusion that the Appellant had not demonstrated sufficient grounds to warrant stay of execution of the exparte judgment and decree in the matter.

3. THAT the learned magistrate erred in law and in principle in finding out that the Appellant’s draft statement of defence did not raise triable issues.

4. THAT the learned magistrate erred in law in failing to uphold the doctrine of precedent.

5. THAT the entire proceedings and ruling by the trial court on the notice of motion by the Appellant dated 5th March, 2020 reflects an erroneous departure from the rules of natural justice and established principles of common law.

6. THAT the learned magistrate misapprehended the facts and submissions presented before him by the Respondents and completely disregarded the grounds of application, affidavit evidence and submissions of the Appellants hence arriving at an unreasonable finding.” (Sic)

6. The appeal was canvassed by way of written submissions. Counsel for the Appellant cited the decision of the Court of Appeal in Jade Collections Limited v Kenya Union of Commercial Food and Allied Workers Union Limited [2020] eKLR concerning the grounds to be considered by the court in dealing with an application to set aside ex parte regular judgment. In explaining the Appellant’s failure to enter appearance and file defence on time, counsel reiterated the material in the supporting affidavit and asserted that the mistakes of the Appellant’s insurers should not be visited on the Appellant who, had acted with alacrity upon being served with summons to enter appearance. He pointed out that the delay in moving the lower court was not inordinate and had been satisfactorily explained.

7. Citing the case of Guptav Continental Builders Ltd [1976-80] 1 KLR 809as cited with approval in Jade Collections Limited (supra) counsel submitted that the draft defence raised triable issues, including matters concerning the ownership of the suit motor vehicle, the occurrence of the accident and negligence of on the part of the Appellant and in the alternative, allegations of contributory negligence on the part of the deceased. Hence, it was stated that the lower court erred in law and fact when it made a finding that the draft defence did not demonstrate triable issues. The court was urged to take cognizance of the dicta in Nicholas Salat v IEBC & 6 Others CA (Application) 228 of 2018 as cited with approval in the decision in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another (2016) eKLR regardingthe application of Article 159 (2)(d), Section 3A of the Civil Procedure Act, and Section 3 of the High Court Organization and Administration Act and to allow the appeal by setting aside the ruling of the lower court.

8. The Respondent supported the lower court’s findings and anchored his submissions on the decision in James Kanyiita Nderitu & Another. Counsel asserted the default judgment was regular, the Appellant having been duly served with summons and failed to file a defence on time. In his view, the lower court rightly dismissed the insufficient reasons advanced by the Appellant for failing to file the statement of defence within time. Counsel contended that the Appellant acted indolently and contrary to the command of overriding objective and was awoken from slumber by the commencement of the execution process. In conclusion it was submitted that the appeal is without merit, and in the event the court concludes otherwise, it should also consider the overriding objective and impose conditions.

9. The court has perused the record of appeal as well as the original record and considered the material canvassed in respect of the appeal. The duty of this court as a first appellate court is to re-evaluate the evidence adduced in the lower court and to draw its own conclusions, but always bearing in mind that it did not have opportunity to see or hear the witnesses testify. See Peters v Sunday Post Ltd (1958) EA 424; Selle and Anor. v Associated Motor Boat Co. Ltd and Others (1968) EA 123; William Diamonds Ltd v Brown [1970] EA 11and Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278.

10. The Court of Appeal stated in Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR that:

“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.

11. The lower court in dismissing the motion expressed itself in part as follows:

… “I have considered the application, the responses to it, parties’ written submissions and the entire court record. It is not in dispute that the defendant was procedurally notified of the institution of the suit when he was served with summons to enter appearance and pleadings………I find that there is a regular judgment in place.

On whether the defendant’s explanation as to the failure to file defence, I find their excuse given by the defendant’s insurer is that summons to enter appearance were misplaced and found after the matter had proceeded and interlocutory judgment given.

The court notes, that the defendant was aware of the existence of a court case and ought to have either communicated to the plaintiff or court to be updated. The court also notes that he defendant’s insurers had before the institution of the suit been served with a statutory notice and notified of the plaintiff’s intention to sue the defendant and/or insurers. From 21/1/2020 when the defendant’s insurer’s found the summons, the plaintiff had not testified. They were made aware of the suit number. They were also notified of the expiry of the stipulated time to file their defence. They did not take a quick action to arrest further proceeding of the matter. They waited until judgment was delivered, decree extracted and issued, only to come to court in this single to stop execution. The defendant’s insurers have legal experts and/or officers to guide on legal issues like this one and ought to have taken quick action/or stop further proceedings or seek audience from the plaintiff of his advocates on the way forward. The explanation herein is inexcusable and insufficient and it as such rejected by this court.

On whether the defendant (draft) attached raises triable issues, …..In the defence statement, the defendant denies liability and blames the deceased for her own misfortunes for allegedly having been negligent while on the road.

All I can say is that the contents of the defence statement are counter accusation on the part of the deceased. There is no issue raised that calls for adjudication by the court and as such I hereby conclude that no triable issue is raised by the defendant in the draft statement.

On the basis of the foregoing, I find and hold that the defendant’s notice of motion herein lacks merit and I dismiss it with costs to the defendant.”(sic).

12. The Appellant’s motion before the subordinate court was primarily anchored on the provisions of Order 10 Rule 11 of the Civil Procedure Rules which 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.”

13. The grant or refusal of an application to set aside or vary a regular default judgment or any consequential decree or order involves the exercise of a discretion that is both wide and unfettered. However, such discretion must be exercised judicially and upon reason, rather than arbitrarily or capriciously. The Court of Appeal in Mashreq Bank P.S.C v Kuguru Food Complex Limited [2018] eKLRstated;

“This Court ought not to interfere with the exercise of a Judges’ discretion unless it is satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of discretion and occasioned injustice. Conversely, a court exercising judicial discretion must be guided by law and facts and not ulterior considerations. This much was stated by the Court of Appeal in the case of Shah v Mbogo (supra)

“A court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising this discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and as a result there has been injustice”. [Emphasis added]

See;United India Insurance Co. Ltd v. East African Underwriters (K) Ltd [1985] E.A 898: -

14. In the case of Shah –vs- Mbogo and Another [1967] E.A 116 stated above, the Court of Appeal set out the purpose of the discretion as follows:

“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

15. The above principles were amplified further by Platt JA in BouchardInternational (Services) Ltd vs. M'Mwereria [1987] KLR 193as cited with approval by the same Court inMiarage Co Ltd v Mwichuiri Co Ltd [2016] eKLR.The passage bears quotation in extenso:

“The basis of approach in Kenya to the exercise of the discretion to be employed or rejected ... is that if service of summons to enter appearance has not been effected, the lack of an initiating process will cause the steps taken to set asideex debito justitiae.If service of notice of hearing or summons to enter appearance has been served, then the court will have before it a regular judgment which may yet be set aside or varied on just terms. To exercise this discretion is a statutory duty and the exercise must be judicial. The court in doing so is duty bound to review the whole situation and see that justice is done. The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice...A judge has to judge the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed. Hence the justice of the matter, the good sense of the matter, were certainly matters for the judge. It is an unconditional unfettered discretion, although it is to be used with reason, and so a regular judgment would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely aprima faciedefence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent it is to have the power to revoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure.…..The judge before whom the application for setting aside is presented will have a greater range of facts concerning the situation after aninter parteshearing, than the judge who actsex parte...Although sufficient cause for non-appearance may not be shown, nevertheless in order that there be no injustice to the applicant the judgment would be set aside in the exercise of the court’s inherent jurisdiction”.

16. As rightly pointed out by the lower court in its ruling, the question of service of summons in the instant matter is not disputed by the Appellant. However, this court is doubtful of the finding by the trial Court that the judgment entered on 7th January 2020 was a regular one. This is because in computing time, the period between 21st December and 13th January is excluded, pursuant to the provisions of Order 50 Rule 4 of the Civil Procedure Rules which states:

“When time does not run [Order 50, rule 4. ] Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.”

17. The Appellant was served with summons on 18th December 2019, which means that he had about two days to 21st December 2019, but even before the excluded period could lapse, a default judgment was entered on 9th January 2020. The original summons served upon the Appellant was attached to the affidavit of service by the process server, Dickson G. Kariuki that accompanied the request for judgment. The summons gave the Appellant 15 days within which to appear. Excluding the period when time was not running, the earliest date that a default judgment could have been properly entered against the Appellant was 26th January 2020. Yet, by that date, the suit had already been set down for formal proof on 28th January 2020. This irregularity in my view is enough reason for this Court to set aside the ex parte judgment, though the Appellant did not raise it before the trial Court. Not to mention the remarkable speed at which the case appears to have been processed; the final judgment was delivered on 20th February 2020 just three months since filing of the suit.

18. Moreover, even if the default judgment had been a regular one, the Appellant in my estimation gave plausible explanations for the asserted failure to file the defence on time. And there was no evidence that the insurer or the Appellant were guilty of deliberately evading, obstructing, or delaying the course of justice. Indeed, contrary to the view taken by the trial Court, the Appellant had done his part having handed over the summons to his insurer, or at least thought so.

19. In any event,asApaloo, J.A. (as he then was) famously stated in Phillip Kiptoo Chemwolo and & Anor. v Augustine Kubede (1986) eKLR:-

“I think a distinguished equity judge has said:

“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merit.”

I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of parties and not for the purpose of imposing discipline....”

20. Additionally, in my view, the Appellant had demonstrated that he had a reasonable defence that raised triable issues of fact and law. The Appellant’s draft defence attached to the affidavit supporting the motion in the lower court disputed among other issues, the ownership of the accident vehicle, the occurrence of the accident and injuries pleaded, and negligence on the part of the driver, and at paragraph 6 pleaded contributory negligence against the deceased as follows:

“6. IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO THE FOREGOING the defendant states that if the said accident occurred (which is denied) the same occurred notwithstanding the careful driving of the defendant’s driver and was inevitable in that as the defendant was carefully and lawfully driving motor vehicle KCK 729D the deceased abruptly and negligently crossed the road in the face of the defendant’s incoming motor vehicle thus giving the driver no reasonable opportunity of avowing the said accident”.

21. The Court of Appeal inDaniel Lago Okomo V Safari Park Hotel Ltd & Another [2017] eKLR in defining a triable issue cited it’s decision in Kenya Trade Combine Ltd V Shah,Civil Appeal No. 193 of 1999, where it stated:

“In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial. We should hasten to add that in this respect a defence which raises triable issues does not mean a defence that must succeed.”

22. The trial court despite noting the averments in the draft defence, made in traverse of the key averments in the plaint, nonetheless dismissed the draft defence as raising no triable issues for the court’s adjudication. With respect, that was a serious misdirection. Given the contents of the two rival pleadings before the trial Court, the draft defence appears reasonable. Thus, even if the ex parte judgment was regular, the Appellant had in my opinion made a strong case to warrant the exercise of the Court’s discretion in his favour. The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error,as stated inShah v Mbogo.The right to be heard is a matter of justice and an integral part of the rule of law and should not be treated lightly. The lower court failed to correctly exercise its discretion, and as a result, the Appellant was unjustifiably denied the right to be heard in his own defence, which denial in the circumstances of this case amounts to an injustice.

23. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR while emphasizing the right to be heard observed:

“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:

(i) the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;

(ii) the right to be heard is a valued right; and

(iii) that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice…”

24. I think I have said enough to demonstrate that the justice of this matter lies in allowing the appeal so that the case in the lower court can be heard on the merits. In the circumstances, the Court hereby sets aside the order of the lower court dismissing the Appellant’s motion dated 5th March 2020 and substitutes therefor an order allowing prayer (c) of the said motion. The Appellant is to file his defence statement within 21 days of today’s date, in view of possible administrative delays in the return of the original file to the lower Court. Costs will abide the outcome of the lower court suit.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 31ST DAY OF MARCH 2022

C. MEOLI

JUDGE

In the presence of:

For the Appellant: Mr. Maanzo

For the Respondent: Ms. Nyongesa

C/A: Carol