[2021] KEHC 9489 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO.26 OF 2014

SAMUEL CHEPTOO.........................................1ST APPELLANT

BELINDA KIRUI...............................................2ND APPELLANT

-VERSUS-

BENSON MEMBE MBALANI...........................RESPONDENT

(An appeal from the Ruling of Hon. F. MUGUONGO (RM)

delivered on 17th February 2014 in Nakuru CMCC No.328 of 2013)

JUDGMENT

1. This appeal arises from a ruling delivered on 17th February 2014 in respect to application dated 28th November 2013 which sought the following orders: -

a) Stay of execution of judgment/decree and/or consequential orders of the lower court.

b) Leave to the file of Advocates filing application to come on record.

c) Release of motor vehicle registration number KAQ 742F by Jogedda Auctioneers.

d) Order setting aside judgment entered in default of appearance and defence and reinstate the suit for hearing and determination.

2. Parties filed submission in respect of the application. Upon considering the application and response by respondent plus submissions by parties, the trial court found that service was proper and the court properly proceeded with the main hearing and delivered judgment. The court further stated that the draft defence attached are mere denials and does not raise triable issues and declined to exercise discretion to set aside the exparte judgment; the application was dismissed with costs.

3. The appellants being aggrieved by the judgment of the trial court filed a Memorandum of Appeal dated 25th February 2014 seeking to set aside the said ruling on the following grounds: -

i. That the learned trial magistrate erred in fact and law in dismissing the appellant’s application dated 28th November 2013.

ii. That the learned trial magistrate erred in law and in fact by misadvising herself and applying wrong principles of law in her ruling.

iii. That the learned trial magistrate erred in law and in fact by misdirecting herself that the appellants had not made a meritorious case which justify setting aside a judgment of the court.

iv. That the learned trial magistrate erred in law and in fact by observing that the appellant did not address the court on the issue of release of subject motor vehicle and kept quiet on the issue yet it is clearly on record.

v. That the learned trial magistrate erred in law and in fact by holding that the appellants were properly served with summons to enter appearance and pleadings as provided for under order 5 of the civil procedure Act.

vi. That the learned trial magistrate erred in law and in fact by misadvising herself that the judgment entered by the court against the appellants was proper and regular.

vii. That the learned trial magistrate erred in law and in fact by failing to adequately consider submissions of the appellants.

4. The appellant urged this court to set aside the ruling herein and set aside the judgment of the trial court, reinstate the suit and grant leave to defendants to file defence.

5. Parties agreed to proceed with the appeal by way of written submissions.

APPELLANTS’ SUBMISSIONS

6. The appellant submitted that they seek to reverse the decision of the trial court in refusing to set aside the exparte judgment entered in favour of the respondent and submitted that the test to set aside exparte judgment was laid in the case of James Wanyoike & 2 others vs CMC Motors Group Ltd [2015] eKLR as follows: -

i. Whether the applicant has a valid defence

ii. Whether the respondent will suffer any prejudice

iii. Whether there is reasonable explanation for delay

7. Appellant submitted that the trial magistrate relied on wrong principles in evaluating and deciding on appellant’s Notice of Motion dated 28th November 2013.

8. Further that procedure involved in serving court process, summonses, orders and/or pleadings are well provided under Order 5 of the Civil Procedure Rules 2010; that the trial magistrate failed to address herself on issue of service of court process and she failed to appreciate that the affidavit of service dated 5th April 2012 by one Samuel N. Gekanana the alleged process server in respect to 1st defendant offends provisions of Order 5 Rule 15 of the Civil Procedure Rules; that the said affidavit is sworn on falsehood; and should not be admitted by court on ground that he does not give his description, he does not show how he came to know 1st defendant, never introduced himself to the person he alleged to have served, in presence of who, whether he accepted service and why he refused to endorse on his principal copy.

9. The appellant further submitted that the second affidavit of service dated 11th May 2012 alleging to have served the 2nd appellant by way of registered post using the last known address offend Order 5 Rule 17 of the Civil Procedure Rulesas no leave of the court was sought to serve by way of substituted service. Further the trial magistrate erred by failing to advise herself that the most preferred mode of service is by way of advertisement on print media with wide circulation. Further that no certificate of posting was provided to indicate that the documents in respect to the 2nd appellant were posted.

10. The appellant further submitted that the respondent failed to prove service of demand letters and notice of entry of judgment allegedly served by way of registered post.

11. The appellant further questioned why the process was not useful to serve demand letters and notice of entry of judgment and why he did not enquire whereabouts of 2nd appellant from 1st appellant or explain efforts made to trace 2nd appellant. The appellants urged court to find that the trial magistrate erred in admitting the two affidavits of service and finding that the appellants were properly served with summons to enter appearance and therefore knew the respondents case in the lower court; and therefore judgment entered on 16th May 2012 was not regular.

12. On whether the appellants have triable defence, the appellants submitted that the claim arise from road traffic accident whose circumstances have to be interrogated by the court; that the ownership of the subject vehicle has to be established and injuries and damages claimed have to be proved.

13. The appellants submitted that they have proved that they were not properly served and are seeking an opportunity to be heard; that the trial magistrate failed to advise herself of the principles of setting aside exparte judgment and wide discretion bestowed on court in dealing with such matters.

14. Further that the trial magistrate overlooked submissions by the appellants and relied on defective police abstract and defective notice of motion to find that the appellants were aware of the pendency of the lower court suit.

15. Among authorities cited by the appellants include the case of Zacharia Onsongo Momany Vs ErastoNanga Manasse & 2 others [2017] eKLR where the court quoted with approval the case of Treeshade Motors Ltd Vs D.T Dobie & Another [1995-1998] EA 324 where the court held as follows: -

“Even if service is valid, the judgment will be set aside if defence raises triable issue. Where a draft defence was tendered together with application to set aside exparte judgment, the court hearing application was obliged to consider if it raised a reasonable defence to the plaintiffs claim...”

16. The appellant’s further submitted that they are likely to suffer prejudice if not given opportunity to be heard as damages awarded are excessive; that the draft defence raises triable issues and prayed for the appeal to be allowed.

RESPONDENT’S SUBMISSIONS

17. The respondent submitted that the appellant failed to extract and include the order appealed from in the record of appeal; that under Order 42 Rule 13 (4) (f) (ii)an order appeal from must form part of the record of appeal. Further that the appellant did not avail order giving leave to appeal nor certificate of delay; that the failure to file the order and leave to appeal is not technicalities but are omissions that render appeal fatally incomplete and therefore incompetent.

18. In respect to failure to serve summons, the respondent submitted that the 1st appellant has not denied that at the time of the suit he worked at Nakuru Cereals and further if the appellants were challenging service they should have applied to examine the process server on oath; further that the averments sworn by respondent on 2nd December 2013, that he met the 1st appellant severally at the police station where he disclosed to him that he works at Nakuru Cereals have not been challenged.

19. Respondent further submitted that besides the 2nd respondent denying services, she has not said anything leading to conclusion that every pleading about her is true and lower court was therefore correct in finding that she was properly served.

20. In respect to draft defence, the respondent submitted that it is mere allegations.

21. She urged court to order release of deposit of kshs 100,000 to her as part settlement of costs.

ANALYSIS AND DETERMINATION

22. I have considered arguments of both parties herein. I wish to consider the following:-

i. Whether the appellants were properly served with summons to enter appearance.

ii. Whether draft defence has triable issues to warrant setting aside of exparte judgment

(i)Whether the appellants were properly served with summons to enter appearance.

23. The 1st appellant denied being personally served at his workplace and indicate that entry register do not bear the name of the process server Samuel N. Gekanana. He indicated that he wasn’t at the work place on 5th April 2012 when the process server alleged he effected service on him. In his affidavit dated 10th December 2012 he indicated that he would want the process server to attend court for cross examination. There is no indication that he was cross examined. It was the responsibility of the 1st respondent to apply for the process server to be summoned to attend court for cross examined. Failure to do so denied court the opportunity to verify the correctness of the process server’s averments. Further, the 1st defendant never attached any document to prove that he was not at his work place at the material time or that the said process server was not registered as having entered the premises.

24. From the foregoing I find that the averments by the process server have not been sufficiently challenged and proceed to find that the 1st appellant was properly served with summons to enter appearance and plaint. The trial magistrate did not therefore err in finding that the 1st appellant was properly served and exparte entry of judgment against him was regularly done.

25. In respect to service of summons and plaint on the 2nd appellant, counsel for the respondent confirm in her affidavit dated 16th May 2012, that it was done by registered post using address she obtained from search with registrar of motor vehicles. She attached the forwarding letter and certificate of posting. She however never demonstrated that efforts to do physical service proved fruitless and whether leave was obtained from court to serve through substituted service. This raises questions concerning service on the 2nd appellant. In my view the 2nd appellant was not properly served with summons to enter appearance and the plaint. Entry of exparte judgment against her was not therefore regular.

26. Having found that the 1st respondent was properly served with summons to enter appearance I wish to consider whether the draft defence annexed to the application dated 28th February 2013 has triable issues to warrant exercising of this court’s discretion to set aside regular judgment entered against the 1st defendant. I have perused, the draft defence and note that the defendants/appellants deny occurrence of the accident or liability if an accident occurred. The 1st defendant/1st respondent having ever having driven motor vehicle registration number KAQ 247F.

(ii)Whether draft defence has triable issues to warrant setting aside of exparte judgment

27. A look at the draft defence show that there are triable issues. Meritorious defence does not have to be a defence that has high chances of success but has issues which need to be adjudicated by the court. Presence of triable issue justifies the need for the court to exercise its discretion to set aside regular judgment entered against the 1st appellant. In my view, the appellants ought to be granted an opportunity to be heard despite the progress of the case so far.

28. FINAL ORDERS

1. This appeal is hereby allowed.

2. The trial court ruling delivered on 4th December 2012 is set aside.

3. The appellants’ draft defence dated 10th December 2013 is deemed as duly filed upon payment of requisite fee within 14 days.

4. The 1st appellant to pay the respondent thrown away costs of kshs 30,000.

5. 1st appellant to comply with order 4 above within 30 days from today’s date failure which to proceed against him.

6. Costs of this appeal to abide by outcome of the lower court matter.

Judgment dated, signed and delivered via zoom at Nakuruthis 28th day of January, 2021

……………………

RACHEL NGETICH

JUDGE

In the presence of:

Jenifer - Court Assistant

Ms. Waituti holding brief for Omondi counsel for Appellants

Ms. Omwenyo counsel for the Respondent