[2020] KEHC 1172 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NUMBER 131 OF 2016

ROY PARCEL SERVICES LIMITED ..........................APPELLANT

VERSUS

BONIFACE SHIBUTSE SHIBUNYANGA .................. RESPONDENT

(Being an appeal arising from the ruling of Honourable E. Kigen (Resident Magistrate in Eldoret CMCC No. 699 of 2013 delivered on the 5th September, 2016)

JUDGMENT

1. The plaintiff herein filed Eldoret Chief Magistrate’s Civil Case Number 641 of 2013 on 25th October, 2013, seeking among others General Damages for pain and suffering against the defendant whom the plaintiff alleged was his employer.

2. On 20th March 2014, an interlocutory judgment was entered against the defendant for failing to file defence. The matter proceeded to formal proof and judgment was delivered on 20th November 2014.

3. The defendant’s counsel filed an application dated 23rd July 2015 to set aside the said judgment and allow defendant to file the defence.

4. On 21st October 2015, the application was compromised by way of consent with the defendant getting twenty one (21) days to file the defence.

5. The defence was filed on 15th February 2015.

6. This is important: - In the defence the defendant denied employing the plaintiff and without prejudice to that contention, averred that there was a contract of employment with certain conditions, blamed the plaintiff for negligence, and denied the jurisdiction of the court.

7. The plaintiff filed a reply to the defence on 17th December 2015.

8. On 23rd March 2016 the matter came for hearing. Neither the defendant nor his lawyer were present. Mrs. Kimaru holding brief for Mr. Andambi for the plaintiff told the court that;

“We served the defence advocate and there is an affidavit of service.”

9. The next thing on the record is:-

“PW1 male adult sworn states….”

The plaintiff was heard. A Mr. Kagunza then closed the plaintiff’s case and on 6th April, 2016, the matter was set for judgment on 20th April, 2016. Judgment was delivered.

10. On 11th July, 2016, the defendant filed a Notice of Motion brought under Order 9 rule 9 (b), Order 12 rule 7 rule 1 (b) Order 22 rule 22(1) & (2), Order 48 rule (2), Order 5 rule 15(1) & rule 16 of the Civil Procedure Rules of 2010, Sections 3A, 3B, 1A of the Civil Procedure Act Cap 21 of the Laws of Kenya, Article 159, Article 48 of the Constitution of Kenya 2010 and all other enabling provisions of the law.

He sought orders inter alia;

a) The application be certified as most urgent and service be dispensed with in the first instance.

b) There be a stay of execution and/or further execution of the decree pending inter-partes hearing and determination of this application.

c) That the attached motor vehicle registration number NO. KAT 205Y FH WHITE be released on running attachment.

d) That the exparte judgment dated 20/6/2016 further decretal orders and together with all consequential orders herein be set aside.

e) That the defendant be given leave to defend the matter and that the case be set down for hearing.

f) That the process server of the affidavit of service sworn on 21st December 2015 be cross examined.

g) Costs be in the cause.

11. The first two orders were compromised by consent dated 18th July 2016 pending the hearing and determination of the application inter partes.

12. On 5th September 2016 the learned trial magistrate delivered the following Ruling:

“The matter came up on 20. 7.2016 for hearing of the application by the Defendant/Applicant dated 11th day of July 2016 where parties agreed to canvass the said application by way of written submissions. After considering the application and the replying affidavit herein as well as the submissions by the plaintiff’s counsel as well as the defendant’s counsel, I do find that the affidavit of service has no fault and the same complies with Order 5 rule 3 of the Civil Procedure Rules.

In BAIYO vs BACH (1987) 89, the court held that “…. If there are merits in the defence, it would be unjust not to allow them to be heard, even if the judgment was obtained regularly. On the other hand if there are no merits, Judgment should stand.”

I have perused the statement of defence herein and find that the same does not raise triable issues. I therefore find that the said application lacks in merit and I proceed to dismiss the same with costs to the plaintiff.”

13. The defendant was aggrieved and filed this appeal on the grounds:-

1. THAT the learned magistrate erred in law and in fact by declining to grant the application to set aside judgment either conditional or unconditionally.

2. THAT the learned trial magistrate erred in law and in fact, by holding that, the statement of defence does not disclose triable issues.

3. THAT the learned trial magistrate erred in law and in fact in her findings that the affidavit of service satisfied the requirements of Order 5 rule 3 of the Civil Procedure Rules.

4. THAT the learned trial magistrate erred in law and in fact in failing to consider further requirements of affidavits of service pursuant to the Civil Procedure Rules.

5. THAT the learned trial magistrate erred in law and in fact by failing to finding that there was no proof of allege service of notices and thus service was not proper in the circumstances.

6. THAT the learned trial magistrate erred in law and in fact by failing to consider that there was no service of the hearing notice and further notices at all.

7. THAT the learned trial magistrate erred in law and in fact by dismissing the application despite the contradictions on the part of the plaintiff’s affidavits and those on record concerning service of court process.

8. THAT the learned trial magistrate erred in law and in fact in failing to find that judgments was and further execution proceedings were irregular in the circumstances.

9. THAT the learned trial magistrate erred in law and further misdirected her discretion by declining to grant the appellant a chance to ventilate its defense on record thus set aside judgment.

10. THAT the learned trial court erred in law and fact by failing to address itself to the need for fair hearing and fair trial on the part of the appellant litigant.

11. THAT the learned honourable magistrate erred in law and in fact by failing to consider the submissions and authorities of the appellant.

12. THAT the learned trial magistrate erred in law and in fact in it’s dismissing the application and further visiting errors and inadvertence of counsels on the innocent appellant litigant.

13. THAT the learned trial magistrate erred in law and fact by writing and delivered a ruling that does not satisfy the requirements of the Civil Procedure Rules thus a defective ruling in the circumstances.

14. To assist the court determine whether the application has merit, counsel filed written submissions. The appellant set out the following issues for determination:

(a) Whether the learned magistrate erred in dismissing the application on the reason that the statement of defence raises no merit;

(b) Whether there was proper service of summons and notices to the defendants;

(c) Whether the appellant should be allowed to defend the suit under Article 48 and 50 of the Constitution 2010.

The appellant relied on Elizabeth Kavere & Another vs Lilian Alto & Another [2020] eKLR and Efil Enterprises Limited & 2 Ohers vs Air Travel & Related Studies Centre Limited [2018] eKLR.

15. The respondent raised the issue:

“Whether there was proper service of summons upon the Appellant or not to warrant the setting aside or otherwise of the ex-parte proceedings, judgment and decree as well as the consequential orders thereto. Learned magistrate erred in dismissing the Appellant’s application dated 11. 07. 2016. ”

And relied on a case cited as Plantation Fertilizers Limited vs Rioki Coffee (1971) Company Limited (2006)

16. I have carefully considered the rival submissions.

17. On the issue as to whether, there was service? The ground for the application dated 11th July 2016 were set out as follows:

1. THAT the honourable court entered judgment against the defendant.

2. THAT the service of hearing notice is disputed.

3. THAT judgment was irregular for want of service.

4. THAT the affidavit of service was based on falsehoods and further does not satisfy the requirements of the civil procedure rules on affidavits of service and has not further evidence of service at all.

5. THAT the court was misled into proceeding exparte and further entering judgment without hearing the defendant on record.

6. THAT the court ought to have been satisfied and further expressed its satisfaction of proper service before proceeding exparte.

7. THAT judgment notice was not served and/or such mention notice before judgment was not issued.

8. THAT the defendant’s right to a fair trial is key.

9. THAT the defendant has been condemned unheard.

10. THAT execution has since commenced vide attachment of the defendant’s properties which are now scheduled for sale.

11. THAT should execution proceed the application herein will be preempted and/or be purely an academic process.

12. THAT the defendant prays to be heard in the interest of justice and in furtherance to fair trial.

13. THAT the defendant litigant is innocent of circumstances surrounding the hearing of the matter and further purported service upon its counsel.

14. THAT unless the orders sought for are granted the applicant stands to suffer irreparably.

15. THAT the application is brought in utmost good faith and in the interest of justice.

16. THAT it is only fair and just that the application be allowed.

17. THAT the honourable court has jurisdiction to allow the application.

That the defendant has not been served.

18. In response the Plaintiff/Respondent filed a Replying Affidavit and annexed the affidavit of Alubala Andambi Advocate sworn on 21st December 2015 where he deponed that;

“On the 19th December 2015 I received copies of reply to defence, questionnaires, and hearing notice dated 17th December, 2015 and coming up for hearing on 23rd March 2016 from my firm to effect service upon the firm of Kwame M/s & Co. Advocates Nairobi.

That on the same day I sent the same via Fargo Courier Services (attached herewith do get copy of the receipt.”

Annexed to the affidavit is an illegible document bearing the logo of Fargo Courier bearing the heading“Cash Collection Box”, a hearing notice and a letter.

19. In his Replying Affidavit the Plaintiff/Respondent deponed that there was nothing irregular in the defendant/applicant being served by courier/registered mail.

20. In the further affidavit of the defendant/ applicant it was deponed that the defendant had not been served either by courier and / or registered mail and there was no evidence to support the alleged service.

21. Counsel for the respondent submitted and I quote;

“It is incredible that the Appellant disputed service but did not even request to cross examine the process server one Mr. Andambi Advocate now deceased on the contents of his affidavit of service which the Appellant is now raising at an appeal stage. The evidence of service on record was via registered post and the Appellant did not dispute the postal address used. It is trite law that once process is served via registered post, the same is deemed duly served under Order 5 Rule 3 unless the address used is disputed as not being of the party being served.”

22. It was the respondent counsel’s position that he complied with Order 5 rule 3 of the Civil Procedure Rules, which provides for serviceon a corporation thus:

“[Order 5, rule 3. ] Service on a corporation.

3. Subject to any other written law, where the suit is against a corporation the summons may be served —

(a) on the secretary, director or other principal officer of the corporation; or

(b) if the process server is unable to find any of the officers of the corporation mentioned in rule 3 (a) —

(i) by leaving it at the registered office of the corporation;

(ii) by sending it by prepaid registered post or by a licensed courier service provider approved by the court to the registered postal address of the corporation; or

(iii) if there is no registered office and no registered postal address of the corporation, by leaving it at the place where the corporation carries on business; or

(iv) by sending it by registered post to the last known postal address of the corporation.”

It was submitted for the respondent that he specifically complied with Order 5 rule 3 (b) (ii) by effecting the service through prepaid registered post or by a licensed courier service provider approved by the court. These means of service are provable through the presentation of documentary evidence, e.g. the receipt issued by the Post Office for the registered mail or by customer’s copy by the courier service provider. For the latter, the law clearly states it must be a service provider approved by the court. However, the respondent did not produce any evidence to support the alleged service by registered mail; the post office issues a certificate to confirm that the parcel has been received for delivery, and no details of this mode of service were provided. Neither was there evidence that the court had approved the said courier service but more importantly there was no evidence that the ‘parcel ’ had been received at the courier service provider’s for delivery. The curious thing in all this was the fact the counsel for the respondent could not decide whether service was by courier or registered post, at one time it was this, at another, it was that. This conduct so to speak throws doubt as to whether there was service.

23. It is evident that the court was mistaken to allow the matter to proceed exparte without even a word as to whether the trial magistrate had seen the affidavit of service, and satisfied herself as to the service. There was nothing in the record to indicate that the learned trial magistrate actually saw and perused the Affidavit of Service to satisfy himself that indeed the defendant/appellant was served. This was necessary, as it was one of the reasons upon which the defendant was denied the right to be heard. It is evident that had the learned trial magistrate applied his mind to these matters he would have arrived at a different decision.

24. It was also submitted that the appellant did not seek an order to cross-examine the process server in the application. However, a perusal of the Notice of Motion dated 11th July 2016 shows that at prayer (f) the appellant sought to cross examine the process server on his affidavit of 21st December 2015.

25. On the question whether there was service on the appellant, I must find, from the foregoing that service was not proved.

26. The other issue is whether the trial magistrate was in error in making the finding that the appellant’s defence had no merit.

27. What I found curious with regard to this issue was the fact that the trial court, dismissed the defence, suo motu. A reading of the record and the pleadings shows that the plaintiff/respondent had not challenged the defence, nowhere had he sought for it to be struck out. Contrary to the submissions by counsel for the respondent. It is clear from the record that the appellant did not have a draft defence, which he was seeking to file. On the contrary, the defence that the court dismissed was a defence already filed and served the plaintiff/ respondent, who had in return filed a reply joining issues with the defendant/appellant.

28. The question that begs is how then could the learned trial magistrate make a finding that the said defence raised no triable issues, yet they were staring at him:, issues such as to whether the court had jurisdiction, whether there was a contract of employment, whether the plaintiff had contributed to the accident. Surely, these cannot be termed as non-triable issues, and more importantly the trial magistrate needed to resolve the issue of jurisdiction before proceeding with the matter

29. It is also possible that the learned trial magistrate misapprehended the pleadings.

30. What I can say about the dismissal of the defence is that, such an act ought to be an act of last resort. Dismissing a party’s pleadings without hearing the party or giving the party the opportunity to amend their pleading in the spirit of Section 100 of the Civil Procedure Actwhich states;

“S. 100. General power to amend

The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”(Emphasis mine)

In addition our Constitution speaks very loudly at Article 50, on fair hearing;

“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court…”

31. These provisions, coupled with Article 159 of the Constitution, clearly state the position; A court ought to concern itself with the determination of the real issue between the parties in the interests of justice.

32. By dismissing the appellant’s defence suo motu, and without giving the appellant the opportunity to be heard the learned trial magistrate removed the defendant from the seat of justice. It was an error on the part of the learned trial magistrate to dismiss the appellant’s defence.

33. The upshot of this is that the matter ought not to have proceeded exparte, there was no reasonable ground for dismissing the defence suo motu, and the defence prima facie raises triable issues.

34. The appeal succeeds and the following orders issue;

i. The Judgment delivered on 28th April 2014 is set aside.

ii. That the Ruling delivered on 7th September 2016 is set aside.

iii. The defendant to be given the opportunity to be heard.

iv. The matter to proceed afresh before a different trial magistrate.

v. The costs of this appeal to the appellant.

Dated and delivered virtually this 7th day of December, 2020.

Mumbua T. Matheka

Judge

In the presence of:

CA Edna

Appellant: Notified: N/A

Respondent: Notified: N/A