[2015] KEHC 8296 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 112 OF 2013

PUTHUCODE KRISHNAIYER SESHADRI……...………………………1ST PLAINTIFF

PREMA SESHADRI…….………...…………………………………..…2ND DEFENDANT

- VERSUS –

THOMAS GICHANA NYAKAMBI MAOSA T/A

MAOSA AND COMPANY ADVOCATES …………………………………….DEFENDANT

RULING

The application dated 2nd February 2015 was brought by the defendant, THOMAS G. NYAKAMBI MAOSA, seeking to set aside the Decree and all the consequential orders.

It is common ground that the judgement was entered against the defendant on 17th March 2014.

On that date the defendant and his advocates were not in court. However, the learned trial Judge proceeded to hear the case after satisfying himself that the defendant’s advocates had been duly served with a Hearing Notice.

The defendant concedes that his advocate was duly served. However, he says that the court clerk, Ms KETI ATIENO, who had received service on behalf of MARIARIA & CO. ADVOCATES, failed to inform the advocate about the Hearing Date.

As the defendant’s advocate did not personally get to know of the Hearing Date, he did not tell the defendant about it. According to the defendant, it was because of the failure by the court clerk to enter the Hearing Date onto the advocate’s diary, that led to non-attendance by both the defendant and his advocate.

The defendant asked the court not to visit the mistake, which was made at the advocate’s office, upon him.

The application was supported by the affidavit of the defendant.

The plaintiff has taken issue with the fact that neither the defendant’s advocate nor the court clerk named Keti Atieno filed any affidavit.

In the circumstances of this case, I find some merit in the plaintiff’s position. I say so because in the submissions dated 22nd May 2015, the defendant stated that the person who received the Hearing Notice was KETI ATIENO. The submissions therefore blame the said KETI ATIENO for the failure to enter into the advocate’s diary, the Hearing date.

Meanwhile, in the supporting affidavit, the defendant deponed thus;

“6. THAT my advocate on record has informed me, which information I verily believe, to be true that he was actually served with a hearing notice (annexed hereto and marked “TGNM1” is a true certified copy of the said hearing notice).

7. THAT he further informs me that despite having adequately been served with the hearing notice, he erroneously failed to indicate the hearing date in his diary and as a result, he failed to appear in court on 17th March, 2014 for the hearing of the suit, and as a result the hearing proceeded and exparte judgement was entered, (annexed hereto and marked “TGNM2” is a true certified copy of the said diary”.

11. From the affidavit, it is clear that the person who was allegedly served was a male advocate. That cannot therefore be the same person as the female clerk, Keti Atieno.

12. As neither the male advocate nor the female court clerk swore affidavits in this matter, it is not clear to the court who exactly was served. That is why I believe that it would have been useful to have the court clerk and the defendant’s advocate file affidavits, to make clear, the factual position.

When did the defendat become aware of the judgement?

13. According to the defendant, it was on 21st December 2014, when the defendant’s advocate was served with a copy of the decree.

14. The plaintiffs ask the court not to believe that assertion, because in their view, it was most improbable that the defendant’s advocate had not called for his client’s file for over eight (8) months.

15. Whilst the reasoning of the plaintiffs is plausible, there is no factual basis upon which the court could cast doubt on the defendant’s assertion.

16. It is possible that the defendant and his advocates were both not as efficient as the plaintiffs believe they ought to have been. But in determining this application, the systems within the Law Firm of Mariaria & Company Advocates are not on trial.

17. On the basis of the defendant’s uncontroverted contention, I find that the defendant first became aware of the Decree on 21st December 2014.

Was there an un-explained delay by the defendant?

18. Having learnt about the Decree on 21st December 2014, the defendant did not bring any application to set aside the said Decree until 2nd February 2015.

19. The defendant has not tendered any explanation for the delay in bringing the application.

20. Nonetheless, I find that the delay was not so inordinate as to constitute a basis for the court to decline, on that ground alone, the invitation to exercise its discretion in favour of the defendant.

21. In this case, the defendant had been duly served. Therefore, the learned trial Judge cannot be faulted for proceeding with the Hearing in the absence of the defendant.

22. Secondly, the trial court did not simply grant judgement because the defendant failed to prosecute his defence. The learned trial Judge carefully analysed the only evidence which was presented to the court, and satisfied himself that the plaintiff was entitled to judgement for the sum of 21,840,000/-.

23. The judgement for that sum was, therefore, regular. I find no basis for setting it aside.

Interest

24. After granting judgement for the principal sum, the court adjourned the further hearing of the case, to 24th March 2014.

25. In my considered view, when the trial was not concluded on the date about which the defendant had been given notice, the defendant ought to have been given Notice of the date slated for the further hearing.

26. As no such notice was issued, I find that the hearing on the 24th March 2014 proceeded ex-parte, without notice to the defendant. Therefore, in relation to the orders made on 24th March 2014, I find that the defendant was condemned un-heard.

27. Accordingly, the proceedings on 24th March 2014 are set aside, together with the Ruling delivered on 29th March 2014.

28. On the issue of costs, I order each party to bear his own costs. I so order because the application has succeeded only in part. That therefore implies that the application failed, in the remaining part. It is for that reason that justice demands that each party should bear his own costs.

DATED, SIGNED and DELIVERED at NAIROBI this24th dayof September2015.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Gachura for the 1st Plaintiff

Mariaria for the 2nd Plaintiff

Mariaria for the 1st Defendant

Collins Odhiambo – Court clerk.