[2020] KEHC 1179 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 79 OF 2017

ROSEMARY WANJIRU KIUNGU.............................PLAINTIFF/RESPONDENT

-VERSUS-

PETER WILLIAM KINYANJUI..................................DEFENDANT/APPLICANT

RULING

1. Before this court for determination is the Notice of Motion dated 17th September, 2020 in which the defendant/ applicant sought for the following orders:

i. Spent.

ii. Spent.

iii. THAT the judgment entered in the matter hereof against the defendant/applicant herein pursuant to the ruling of this court delivered on 28th February, 202o be set aside ex debito justiciae.

iv. THAT the defendant/applicant be granted unconditional leave to defend the plaintiff’s/ respondent’s Notice of Motion dated 11th November 2019.

v.THAT the costs of the application be provided for.

2. The Motion is supported by the grounds statedon its face and the facts deponed in the affidavit of the applicant.

3. The plaintiff/respondent filed the replying affidavit she sworn To oppose the motion.

4. The Motion was canvassed through written submissions.

5. I have considered the grounds on the face of the Motion, the facts deponed in the supporting and replying affidavits on record and the rival written submissions and authorities cited.

6. A brief background of the matter is that the respondent previously filed the application dated 11th November, 2019 seeking orders that the defendant’s statement of defence dated 5th January, 2018 be struck out and that judgment be entered in her favour as prayed in the plaint. The application was unopposed. Upon hearing the same, this court vide its ruling delivered on 28th February, 2020 granted the orders sought in the application. It is those orders that have precipitated the instant Motion.

7. It is clear that the Motion concerns itself with the setting aside of the ex parte judgment entered by this court pursuant to the aforementioned ruling and for the applicant to be granted an opportunity to defend the suit.

8. The provisions of Order 51, Rule 15 of the Civil Procedure Rules cited in the applicant’s submissions stipulate that:

“The court may set aside an order made ex parte.”

9. It is clear from the foregoing that the power to set aside ex parte orders is discretionary and will be applied in favour of an applicant where sufficient or reasonable grounds have been shown by the applying party.

10. The first limb for determination therefore is whether there was proper service or any service at all of the application upon the applicant.

11. In his affidavit, the applicant states that he was never served with a copy of the application of 11th November, 2019 and that he has never met the process server who prepared the affidavit of service to that effect.

12. The applicant further states that he only came to learn of the existence of the judgment on being served with a proclamation notice on 8th September, 2020 in execution of the decree in the instant suit.

13. In response, the respondent avers that all court processes have been duly served upon the applicant.

14. The respondent also avers that the application dated 11th November, 2019 was served upon the applicant at his place of business; Smart Butchery, along Muratha Road in Kangemi area in Nairobi, by the process server (Alex Maroa) who met the applicant in person and informed him of the purpose of his visit before handing him a copy of the aforementioned application, which the applicant received but declined to sign as an acknowledgment of receipt.

15. The respondent urges this court to consider the reasoning of the court in the case of Mwangangi Mbumbu v Prime Steel Mills Limited [2019] eKLR where the subject of service was addressed in the following manner:

“MR. PETER KAGUAMBA, the person served with notice of taxation is the Human Resource Manager of the respondent, and is an authorised officer as deposed in his affidavit in support of the instant application. Service upon him was therefore proper.

It is also evident from the further affidavit of STEPHEN KIOKO that both Stanley Okoth and Charles Mateka who were the other officers served on behalf of the respondent, are in the employment of the respondent as admitted in the said affidavit of STEPHEN KIOKO.

It is also apparent from these affidavits that both the Kitengela and Westlands offices were recognised offices of the respondent as the addresses on both affidavits of PETER KAGUAMBA and Stephen KIOKO are in Kitengela.

It is not conceivable that Stephen Okoth and Charles Mateka who are Assistant Human Resource Officers, did not understand the contents of documents which were served upon them, which service they freely accepted after the process server explained to them the purposes of the service. They were not as described in Mr. Kioko’s affidavit, employees who did not understand the content of the documents served, and did not bring them to the attention of the respondent’s key management for necessary action.

From the foregoing I find that the respondent was properly served as service was effected upon its Assistant Human Resource Officers. The respondent was thus aware of the contents of the documents served upon it through the said Assistant Human Resource Officers.”

16. From my perusal of the affidavit of service which was annexed to both the instant Motion and the replying affidavit, I note that service was effected upon the applicant in person and in the location set out hereinabove.

17. I equally note that despite denying the fact that the service was effected, the applicant has not denied that his business is situated in the abovementioned location or that he was not represented by an advocate at the time.

18. Moreover, I note from the record that previous court documents were also served upon the applicant in the same area, according to the affidavit of service prepared by Wesley Ombaye Nyamanyara and filed on 11th November, 2019 following the withdrawal of the erstwhile advocate for the applicant from acting in the matter as at 24th October, 2019.

19. In view of the foregoing circumstances, the mere fact that the applicant did not acknowledge receipt of the court documents served upon him and the fact that the process server did not provide further details on the manner in which he identified the applicant does not necessarily invalidate the service. To my mind, the applicant has not brought any credible evidence or arguments to convince this court that he was not served with a copy of the application in question. I therefore find that service was duly effected upon the applicant and he was at all material times aware of the existence of the application.

20. Even if I were to find that service was not properly effected, I am enjoined by law to consider whether the applicant has a triable defence which ought to be heard on merit, which brings me to the second limb of the instant Motion.

21. On his part, the applicant contends that he has a valid defence which raises triable issues and that he should be heard both in response to the application of 11th November, 2019 and at the hearing of the main suit.

22. The applicant further contends that the respondent will not suffer any prejudice should the orders sought herein be granted, and cites inter alia, the case of James Wanyoike & 2 others v C M C Motors Group Limited & 4 others [2015] eKLR where the court held thus:

“From the foregoing, the principles and tests for setting aside an ex-parte judgement can be summarized as follows:-

1. That the court has unfettered, unlimited and unrestricted jurisdiction to set aside an ex-parte judgement.

2. That the tests for setting aside an ex-parte judgement are:-

a) Whether there is a defence on the merits?

b) Whether there would be any prejudice to the plaintiff?

c) What is the explanation for any delay?”

23. The respondent states on her part that the Motion is brought in bad faith and is an abuse of the court process and is intended to frustrate her.

24. The respondent further states that the applicant has not attached a draft defence to his Motion and hence it is notpossible to establish whether there are any triable issues.

25. From my perusal of the record, it is apparent that the applicant had earlier on filed a statement of defence. However, I also note from my earlier ruling of 28th February, 2020 that the issue of the applicant’s statement of defence was adequately addressed therein and I see no need to belabor my reasoning.

26. Nevertheless, in summary I found that the present suit being declaratory in nature, there was no triable defence on record that would require a trial and that the continued existence of the suit would further prejudice the respondent. On those grounds and more, I granted an order striking out the defence and entered judgment as prayed in the plaint.

27. In the circumstances, I find no basis to depart from my earlier finding.

28. The upshot therefore is that the Motion dated 17th September, 2020 is hereby dismissed with costs to theplaintiff/respondent.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 4th day of December, 2020.

..........................

J. K.SERGON

JUDGE

In the presence of:

.................... for the Plaintiff/Respondent

.....................for the Defendant/Applicant