[2022] KEHC 12141 (KLR)

Priyann Entreprises Limited v Henkel Polymer Co. Ltd T/A Henkel Chemical EA & 2 others (Commercial Case E072 of 2021) [2022] KEHC 12141 (KLR) (Commercial and Tax) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12141 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case E072 of 2021

A Mshila, J

May 6, 2022

Between

Priyann Entreprises Limited

Plaintiff

and

Henkel Polymer Co. Ltd T/A Henkel Chemical Ea

1st Defendant

Ruth Martha Henkel

2nd Defendant

Mikael Shauki Henkel Khalil

3rd Defendant

Ruling

1. The notice of motion was brought under section 1A, 1A &3A of the Civil Procedure Act, order 10 rule 11 of the Civil Procedure Rules and article 50 of the Constitution of Kenya. The application was supported by the sworn affidavit of Atuhairwe Agrace who sought the following orders;a.Pending the hearing and determination of this Application inter-partes, the court to grant a stay of execution of the judgment and decree issued on April 12, 2021. b.The court sets aside the judgment and decree of April 12, 2021 and orders therein entirely.c.This matter be set down for hearing of the main suit on its merits.

2. That on April 26, 2021, the plaintiff served the defendants' advocate on record with a decree and a notice of entry of judgement and commencement of execution, both dated April 20, 2021.

3. The judgment entered against the defendants is interlocutory in nature and was made in absence of the defendants' Counsel. At no occasion did the plaintiff's counsel serve the defendants' Counsel with a hearing notice. Also at no material time did the plaintiff's Counsel serve the defendant's counsel with an application for interlocutory judgment.

4. The applicants are apprehensive that the intended execution arising from the ex partejudgment herein is illegal, irregular and the same violates its constitutional rights to be heard.

5. The respondent in its response to the application stated that the Deputy Registrar of the court issued a notice to the parties on March 5, 2021 scheduling the matter for a mention on 1March 6, 2021 to confirm issuance of summons and to schedule the matter for case management conference (Marked as "DNK — 2" is a copy of the notice).

6. That on March 16, 2021, the matter came up for mention on which the defendant's counsel after having entered appearance failed to file a defence and the Deputy Registrar advised the plaintiff to file a request for judgement under order 10 rule 4(1) of the Civil Procedure Rules, 2010 and appear in court on March 17, 2021 for further directions.

7. On March 18, 2021, the Deputy Registrar wrote to both parties vide email dated March 18, 2021, informing them that the matter would be mentioned on April 12, 2021 before the Deputy Registrar. (Marked as "DNK 3" is a copy of the notice from the Deputy Registrar).

8. Vide the said notice, the defendants were notified of the mention as per the email address supplied as per the memorandum of appearance marked as enquiries@bitalakinga.com and thus the ground of not being notified does not hold water.

9. On March 12, 2021, the matter came up for mention and the defendants counsel failed to attend albeit having been notified by the Deputy Registrar and thus judgment was entered as per order 10 rule 4(1) as read with order 10 rule 10 of the Civil Procedure Rules, 2010.

10. The plaintiff/ respondent was under no obligation to serve the applicants/ defendants with a mention notice because all the notices were at the instance of the court/ Deputy Registrar.

11. Moreover, the defendants' application is fatally defective as it has failed to attach a draft defence to enable this honourable court decipher whether the defendants/ applicants have an arguable case in which the plaintiff/ respondent maintains that there is no arguable case since there is an express, unequivocal admission of debt on record.

Issues For Determination 12. The court has considered the application and the response thereto and has framed the following issues are for determination;a.Whether stay of execution of judgment and decree is merited;b.Whether judgment entered should be set aside?

Analysis 13. The court has noted that parties herein did not file any written submissions and requested the court to make a determination with the material on record.

14. The provisions of order 10, rule 4 of the Civil Procedure Rules empowers courts to enter interlocutory judgment in cases where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages.

15. While order 10 rule 11 of the Civil Procedure Rules 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.

16. The applicants sought to have the judgment and decree of April 12, 2021 set aside on the grounds that the judgment entered against the defendants is interlocutory in nature and was made in absence of the defendants' counsel. At no occasion did the plaintiff's counsel serve the defendants' Counsel with a hearing notice. Also at no material time did the plaintiff's counsel serve the defendant's counsel with an application for interlocutory judgement.

17. In deciding whether the interlocutory judgment should be set aside the case relied on was Shah vs Mbogo [1967] EA 166 where it was held that:“This 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….”

18. It is noteworthy that the defendants were duly served with summons to enter appearance and plaint. Thereafter, the Applicants filed a memorandum of appearance on March 1, 2021 but failed to file a statement of defence.

19. On March 16, 2021, the respondent filed a request of judgment against the Applicants for failing to file a statement of defence

20. The court has had the opportunity to peruse the annextures in the application and the court notes that on March 18, 2021 vide an email to the parties, the parties’ advocates were served with a mention notice stating that the matter would be mentioned on April 12, 2021.

21. This mention date was issued after the request for judgment was filed and the same sent to both parties by the court registry. It was therefore not necessary for the respondent to send another mention notice to the applicant.

22. Therefore, the court holds the view that the judgment entered against the defendant was a regular judgment as there was proper service, of the summons to enter appearance and thereafter the defendant filed a memorandum of appearance but failed to file a defence and to date the same has not been filed even in the form of a draft defence. It will be impossible in the circumstances to determine whether the defendant has an arguable case or whether there are triable issues or not.

23. In the case of, Kimani v MC Conmell (1966) EA 545, the Court held that where a regular judgment has been entered the court will not usually set aside the judgment unless it is satisfied that the defence raises triable issues. Further in Jomo Kenyatta University of Agriculture and Technology v Musa Ezekiel Oebal (2014) eKLR, the court stated that the purpose of clothing the court with discretion to set aside ex-partejudgment is:“To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice...”

24. It goes without saying that the conduct of the defendant herein throughout the existence of the suit to date was to deliberately delay the cause of justice. This court finds that the Applicants have not placed any material for the court to exercise its discretion in setting aside the judgment nor have satisfied the court that stay of execution of judgment and decree is merited.

Findings And Determination 25. For the for forgoing reasons this court makes the following finding and determination;

i. This court finds the application devoid of merit in its entirety and it is hereby dismissed with costs;ii. The applicants shall bear the costs.Orders Accordingly.DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 6THDAY OF MAY, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Mabei for the plaintiff/respondentNo appearance for Mr. Omondi for the defendant/ApplicantLucy--------------------------------Court Assistant3