[2022] KEHC 17168 (KLR)

Salama Beach Hotel v Ventaglio International SA & 5 others (Civil Suit 10 of 2019) [2022] KEHC 17168 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 17168 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Suit 10 of 2019

SM Githinji, J

September 19, 2022

Between

Salama Beach Hotel

Plaintiff

and

Ventaglio International SA

1st Defendant

Arcuri Ignazio

2nd Defendant

D.SSA Dal Moro Maddalena

3rd Defendant

AVV. De Cesaria Patrizia

4th Defendant

Isaac Rodrot

5th Defendant

Steffanop Uccelli

6th Defendant

Ruling

1. For determination is the Plaintiff’s Notice of Motion dated 6th October 2021 seeking the following orders;1. Spent.2. That the proceedings and/or orders of 29. 09. 2021 be set aside and direction that the hearing of the Application dated 19th April 2021 be heard on merits.3. That costs of this application be provided for.

2. The application is premised on the sworn affidavit of David Onyono Nyangena an advocate of the high Court and counsel for the plaintiffs who states that the matter came up for mention on 29th September 2021 to confirm if the parties had filed submissions and for further directions on ruling date. He stated that on the said date they attempted to join the online platform but due to technological challenges they were unable to join on time though they had filed their grounds of opposition and submissions to the 5th defendant’s application dated 19th April 2021 and they expected a ruling date for the said application.

3. It was stated they became aware of the said orders granted on 29th September 2021 later and the subsequent directions thereof, and upon following up on the same established had been issued in their absence as the 5th defendant had misled the court, and the order stated that Manduku was present for the plaintiff which allegation is denied and thus seeks to have the orders granted on 29th September 2021 set aside.

4. The 5th defendant Isaac Rodrot filed a replying affidavit dated 27th January 2022 stating that this court delivered its ruling on 6th April 2021 and being aggrieved by the orders issued, he instructed his advocates to file an Application dated 19th April 2021 seeking inter alia that there be a stay of execution pending the intended appeal to the Court of Appeal.

5. It was stated that on 29th July 2021 the Respondents were directed to file submissions with regards to the said application. That in compliance he filed and served his submissions on 15th June 2021 while Mr. Nyagena for the plaintiff was directed on 10th August 2021 to file his submissions within 3 days and the matter was fixed for mention on 29th September 2021.

6. It was further stated that despite the parties herein being served with a mention notice on the said 29th September 2021 neither the plaintiff nor his advocates on record were present with no reason for their non-attendance thus the court exercised its discretion and allowed the application.

Submissions by the Parties The Applicant’s Submissions 7. Counsel for the applicant submitted that he was unable to attend court on 29th September 2021 due to technical hitches and thus it is misleading that the orders granted on 29th September 2021 indicates that the same were issued in the presence of Mr. Manduku for the Plaintiff.

8. Counsel for the plaintiff further urged this court to set aside the orders issued on 29th September 2021 and allow the Plaintiff/ Applicant’s application dated 19th April 2021 be heard on merits.

9. Counsel for the 5th defendant submitted that there are no basis for moving the court to set aside the ruling in the circumstances of this case.

Analysis and Determination 10. The issue arising for determination is whether the applicant has met the threshold for setting aside the ruling dated 29th September 2021. On setting aside of judgment or orders, Order 12 Rule 7 of the Civil Procedure Rules provides: -“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just."Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides: -“The court may set aside an order made ex parte"The above provision of the Civil Procedure Rules clearly provides for setting aside ex-parte orders.

11. In setting aside ex parte orders, the court must be satisfied of one of two things, namely, either that the respondent was not properly served with summons or that the respondent failed to appear in court at the hearing due to sufficient cause. (See – Philip Ongom, Capt vs. Catherine Nyero Owota Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003).

12. In the instant case, the Applicant herein was properly served with the mention notice dated 13th August 2021. The pertinent question therefore is whether the Applicant’s non-attendance of court on 29th September 2021 constituted an excusable mistake, or was meant to deliberately delay the cause of justice, and whether the explanation given for the failure qualifies as sufficient cause.In Ongom vs. Owota (supra) the Court stated thus:“…However, what constitutes “sufficient cause”, to prevent a defendant from appearing in court, and what would be “fit conditions” for the court to impose when granting such an order, necessarily depend on the circumstances of each case.”

13. The Applicant’s advocate, states that the reason for non-attendance was the inability to join the virtual forum on 29th September 2021. I do note that the Plaintiff/Applicant had filed submissions in respect of the application dated 19th April 2021 on 17th September 2021. These submissions were filed before the orders of 29th September 2021.

14. In my view, the absence of the plaintiff’s advocate notwithstanding, there is no demonstration that the court did not consider the plaintiff’s submissions at the time of granting the orders.

15. I have also looked at the orders issued on 29th September 2021. They are orders for stay of execution pending interpartes hearing of the Application dated 19th April 2021 and also stay pending the intended appeal at the Court of Appeal.Stay orders are granted to preserve the substratum of the suit. Granting the prayers to set aside the orders for stay would mean that the substratum of the suit is not preserved and that may not serve the ends of Justice.

16. The upshot is that the Application dated 6th October 2021 has no merit and the same is hereby dismissed.Costs shall be in the cause.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 19THDAY OF SEPTEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the presence ofMr. Nyangena for the Plaintiff/ApplicantMr. Wafula for the 1st and 4th defendantsMr. Munyithya for the 5th DefendantMr. Kibunja for the 6th defendant