[2023] KEHC 25418 (KLR)

Ponga & another v Kimonge (Civil Appeal E060 of 2022) [2023] KEHC 25418 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25418 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E060 of 2022

GMA Dulu, J

November 16, 2023

Between

Gift Ponga

1st Appellant

Almaans International Limited

2nd Appellant

and

Gezzam Sholo Kimonge

Respondent

(From the ruling delivered by Hon. C. K. Kithinji (PM) at Voi Law Courts on 30th November 2022 in CMCC Case No. 251 of 2018)

Judgment

1. In a ruling delivered on November 30, 2022, the learned trial Magistrate concluded as follows:-“It is my find that the judgment on record was a regular one, there is no explanation why the suit was not defended and the defence does not raise triable issues. The application is thus unmerited and thus I dismiss the same with costs to the Plaintiff.”

2. Dissatisfied with the above ruling, the appellants who were the applicants/defendants in the trial court, have come to this court on appeal through counsel Mokaya & Onyambu Advocates on the following grounds:-1. The learned Magistrate erred in law and fact in that she misapprehended the law applicable to the applicant’s Notice of Motion application to set aside ex-parte judgment thus arriving at a wrong and erroneous decision.2. The learned Magistrate erred in law and in fact in failing to cogently evaluate and appreciate the evidence tendered in by the appellants and issues raised in its submissions in respect of Voi CMCC No. 251 of 2018 and failing to appreciate that the appellant has an arguable and merited defence.3. The learned Magistrate erred in law and in fact in failing to appreciate that the appellant has an arguable and merited defence.4. The learned Magistrate erred in law and in fact in failing to take into account the cogent, concise and chronological explanation given by the appellant for the delay and her omission to enter appearance and file a statement of defence within time.5. The learned Magistrate erred in law and in fact in failing to exercise the wide discretion granted under the law and the overriding objective and allow the appellant’s application before court.6. The learned Magistrate erred in law and in fact in failing to appreciate that the respondent had not proved his case on the balance of probabilities.7. The learned Magistrate erred in law and in fact in applying wrong principles in arriving at the decision of dismissing the appellant’s application and failing to accord natural justice and to arrive at a fair trial.8. The learned Magistrate erred in law and in fact in failing to consider several cited and other case laws thus arriving at an erroneous decision in dismissing the appellant’s application.

3. The appeal was canvassed through written submissions. In this regard, I have considered the submissions filed by Mokaya & Onyambu Advocates for the appellants, as well as the submissions filed by Shem Kebongo & Company Advocates for the respondent.

4. This is an appeal from the decision of the trial court to an application to set aside an ex-parte judgment. Indeed, the Magistrate had discretionary power to set aside the ex-parte judgment – see Patel =Versus= E.A Cargo Handling Services Ltd (1974) EA 75, in which it was stated that the main concern in the exercise of that discretion to set aside, is to do justice to the parties.

5. What reasons did the appellant give in their application relating to their failure to enter appearance and file defence, resulting in entry of the ex-parte judgment? The contention of the appellants is captured in paragraph 11 and 12 of the ruling which is that the appellant (litigant) was not served with court summons, and that after the accident, he merely reported the incident to the insurer who took up the claim. That was the end of his involvements in the case.

6. Thereafter, the insurer appointed an advocate to act in the case, who failed to attend court because of a mix of other matters which he handled in the advocates office, and maybe the fact of the documents being handled by a junior advocate.

7. In my view, since the litigant or appellant herein, was not served with any court process, and the ultimate burden of the case would be on him, the trial court should have exercised the court’s discretion in his favour and set aside the exparte judgment, as the litigant or appellant was not even the person who instructed the lawyer, and the appellant was not negligent in any way.

8. Thus, though I agree with the trial court, that the ex-parte judgment was validly entered as there was no defence filed, in my view, refusing to set aside the same would amount to a clear denial to the appellant of the right to fair hearing enshrined under article 25 and 50 of the Constitution.

9. I thus allow the appeal and order as follows:-i. The order dismissing the appellant’s Notice of Motion application dated September 19, 2022 in Voi CMCC No. 251 of 2018 be and is hereby set aside, and the said application is hereby allowed and the exparte judgment and consequential orders are hereby set aside.ii. If the appellant has not yet filed a defence, such defence will be filed in the trial court within the next seven (7) days.iii. The costs of this appeal will abide the decision in the trial court.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF NOVEMBER 2023 AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Nyambane holding brief for Mr. Mokaya for appellantsMr. Owiti for the respondents