[2022] KEHC 3012 (KLR)

Times U Savings and Credit Co-Operative Society Limited v Njuki & another (Civil Appeal E033 of 2021) [2022] KEHC 3012 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3012 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E033 of 2021

LM Njuguna, J

May 12, 2022

Between

Times U Savings and Credit Co-Operative Society Limited

Appellant

and

Fredrick Njagi Njuki

1st Respondent

Desmond Mutuma Mwiti

2nd Respondent

Judgment

1. The appeal herein is against the ruling of the trial court (Hon. H. Nyakweba) in Embu CMCC 139 of 2019 wherein the trial court dismissed the appellant’s application dated 10. 03. 2021 and which sought for the orders for setting aside of the ex-parte judgment and leave to file its defence and have the matter heard on merit. The appeal was instituted vide a memorandum of appeal dated 30. 08. 2021, setting out the grounds hereunder:i)That the learned magistrate erred in fact by failing to set aside the judgment in default entered against the appellant.ii)That the learned trial magistrate erred in law and fact by finding that the appellant was a mere financier but declined to strike out the appellant’s name from the suit.iii)That the learned trial magistrate erred in law and fact by laying emphasis on the absence of a draft statement of defence while it was clear that the only line of defence the appellant would take was that it was mere financier.iv)That the learned trial magistrate erred in law and fact by failing to order that service of summons to enter appearance be entered against the 2nd respondent first before determining the application by the appellant.v)That the learned trial magistrate erred in law and fact by dismissing the appellant’s application despite the weight of evidence and the authorities cited by the appellant.

2. The appellant thus prayed that:i)This appeal be allowed.ii)The decision by the Chief Magistrate’s court dismissing the appellant’s application dated 10. 03. 2021 be set aside and substituted with an order allowing the said application.iii)The applicant to have costs both of this appeal as well as costs of the trial court.

3. At the hearing of the appeal, the parties took directions to have the same canvassed by way of written submissions.

4. The appellant in support of the appeal submitted that the appellant is a savings and credit cooperative society. That the appellant was not the owner of motor vehicle registration number KCF 401L and its interest in the vehicle was limited to that of financier. It was submitted that, financial institutions must as a necessity include their names in the logbooks where they are financing the purchase of motor vehicles; that this is so to prevent the person who has been advanced the credit from transferring the vehicle, which is a security for the facility without the financier’s knowledge thus preventing the financier from recovering its money. Reliance was placed on High Court at Nairobi Civil Appeal No. 334 of 2017 Cooperative Bank of Kenya v Thomas Ngui &another. That it was necessary for the appellant to be a party to the suit before the trial court and further that, the appellant produced a copy of the record demonstrating that the 2nd respondent had cleared the loan advanced to him and had the vehicle transferred to his sole name. Reliance was placed on High Court at Nairobi Civil Appeal No. 61 of 2013 Equity Bank Limited v Humphrey Waudi Okuku &another. The appellant further submitted that the 1st respondent not only had a duty to extract, but to serve summons to enter appearance upon the appellant as well as the 2nd respondent. That due to the nature of issues raised by the appellant in the subordinate court, the trial court ought to have ensured that the 1st respondent had duly served the 2nd respondent with summons to enter appearance so that its side of story could also be heard. That the appellant filed fairly comprehensive submissions and cited authorities that ought to have convinced the trial court to arrive at a different decision. Further, reliance was placed on High Court of Kenya at Machakos Civil Application No. 61 of 2018Pauline Ndunge Phillip v Francis Mutinda Phillip &others. The appellant thus urged this court to allow the appeal with costs to be borne by the respondent.

5. The 1st respondent on the other hand submitted that it filed its pleadings dated 01. 08. 2019 and was issued with summons against the appellant and 2nd respondent in Civil Suit No. 139 of 2019. That the aforementioned documents were served upon the appellant and the 2nd respondent on 16. 08. 2019 and 03. 09. 2019 respectively. It was submitted that the 1st respondent proceeded to file a request for judgment dated 25. 11. 2019 against the appellant and the 2nd respondent having been fully satisfied that service had been effected upon the appellant. It was its case that in an attempt to delay justice and execution of decree, the appellant filed the application dated 10. 03. 2021 and a ruling was delivered on 24. 08. 2021 which is the subject of this appeal. Reliance was placed on the case of Phillip Kiptoo Chemwolo & Mumias Sugar company Ltd v Augustine Kubede(1982 – 1988). That the appellant never filed any statement of defence and so there was no defence for the trial court to look at to determine whether there was a triable issue and as such, the appeal should fail. The 1st respondent submitted that the appellant never explained to this court what really prevented it from filing a statement of defence within the stipulated time and as such, it was averred that justice delayed is justice denied. That setting aside or not of an interlocutory judgment is a matter of court’s discretion and in any case, the court must be given satisfactory reasons why a party was unable to file their documents within the stipulated time. That the appellant is the author of its predicament and as such this court was urged to dismiss the appeal herein.

6. This being a first appeal, this court is obliged to re-assess, re-evaluate and re-examine the evidence adduced before the trial court and arrive at its own independent conclusion bearing in mind the fact that it neither heard nor saw the witnesses as they testified and therefore giving an allowance to that [See Selle & another v Associated Motor Boat Co. Ltd. & others(1968) EA 12]. This court ought not to interfere with the exercise of the discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters which it should not have acted or it has failed to take into consideration matters which it should have taken into consideration and in doing so, arrived at a wrong conclusion [See Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) IKAR 278]. Further, in the re-evaluation of the trial court’s evidence, there is no set format to which this court ought to conform to, but the evaluation should be done depending on the circumstances of each. [See Supreme Court of Uganda’s decision in Uganda Breweries Ltd v Uganda Railways Corporation[2002] 2 EA 634 and Odongo and Another v Bonge Supreme Court Uganda CivilAppeal 10 of 1987 (UR).

7. In a nutshell, the application which was before the trial court was seeking orders for setting aside of the ex-parte judgment and leave to enter appearance and file its defense and have the matter heard on merit. The grounds in support of the application were that the appellant was not the owner of the subject motor vehicle registration Number KCF 401L and its interest in the vehicle was limited to that of a financier. That the name of the appellant was only endorsed in the register of the motor vehicle to protect its interest and not as the owner.

8. The said application was opposed by the plaintiff and wherein it was deposed that the applicant was aware of the matter and was served with summons but failed to enter appearance. That it was later served with the notice of entry of judgment and thus no explanation had been given as to the failure to defend the matter. The 1st Respondent further deposed that the appellant failed to annex a draft statement of defence to the application to set aside the exparte judgment.

9. The trial court delivered the impugned ruling dismissing the application wherein the court was of the view that by deliberately failing to enter appearance and file a defence, the applicant/ appellant herein sought to obstruct and/or delay the course of justice. And in that regard, the court was not persuaded to exercise its discretion in the applicant/appellant’s favour to set aside the interlocutory judgment.

10. It is this ruling which is the subject of this appeal.

11. I have considered and analyzed the pleadings and the evidence adduced before the trial court by the parties to this appeal, and the submissions in this appeal and it is my view that the main issue for determination is whether the trial magistrate erred in law and fact in dismissing the appellant’s application dated 10. 03. 2021.

12. As I noted earlier, the application which was before the trial court sought for orders for setting aside of the ex-parte judgment dated 29. 10. 2020 and leave to file defence and have the matter heard on merit. Order 10 Rule 11 of the Civil Procedure Rules empowers the court to set aside an ex parte judgment for default of appearance and defence. The principles applicable under this rule were laid down by the Court of Appeal in Pithon Waweru Maina v Thuka Mugiria [1983] eKLR and restated in Toshike Construction Company Limited v Harambee Co-operative Savings & another [2019] eKLR as;-“(a)Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just ... The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E(b)Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo[1967] EA 116 at 123B,Shabir Din v Ram Parkash Anand(1955) 22 EACA(c)Thirdly the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah[1968] EA 93. "

13. In Abdirahaman Abdi v Safi Petroleum Products Ltd. & 6others[2011] eKLR, the Court of Appeal while discussing the input of article 159 of the Constitution in dispute resolution held:-“…………..Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party if the court strikes out its documents. The court in that regard exercise judicial discretion”.

14. Similarly in Nicholas Salat v IEBC & 6others, CA (Application) No 228 of 2013, the Court of Appeal further held that;-“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”

15. It is therefore clear from the aforesaid provisions that the court has power to set aside the interlocutory judgment and allow the appellant herein to file a suitable defence. However, such leave is not to be granted as a matter of course. The court must satisfy itself that there is a good explanation that has been offered to set aside such judgment and upon such terms that it would deem fit in the circumstances for the reason that such action would definitely be taking a plaintiff back in time causing delay in the conclusion of her case especially where the matter had proceeded to formal proof and a judgment given.

16. The appellant in the supporting affidavit sworn by Catherine Ndumba Nkanata, its Credit Manager, deposed that failure to enter appearance in good time was due to an oversight on the part of the appellant. That the grounds upon which exparte judgment is to be set aside are well settled and even if the court had found that the appellant was a necessary party to the suit, the court ought to have set aside the judgment in default against the appellant and direct it to file a statement of defence within a given period of time. That it was clear from the application by the appellant that its only line of defence was that it was a mere financier of the subject motor vehicle and it did not have possession and/or control. In my view, the reasons advanced by the appellant to this extent were not sufficient to warrant the exercise of the court’s discretion in its favour given that the court was satisfied with the service. It could not have costed the appellant much to present its side of defence for the trial court to come up with a conclusive determination. Failure by the appellant to follow up on the matter in my view is an indication of how casual it took the matter.

17. However, it is trite law that no party should be penalized just because there was a blunder particularly by his or her advocate. In the case of Republic v Speaker Nairobi City County Assembly &another Ex Parte [2017] eKLR, it was held that blunders will continue being made and that just because a mistake had been made, a party does not mean that he should not have his case heard on merit. (See Article 50 of the Constitution]. Further in the case of Prime Bank Limited vs Paul Otieno Nyamodi[2014] eKLR, it was held that it did not follow that just because a mistake had been made, a party should suffer the penalty of not having his case heard on merit.

18. A court should not assist a party who had “deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice” as was held in the case of Shah v Mbogo (Supra). However, having had due regard to the cases inter alia John Peter Kiria & another v Pauline Kagwiria[2013] eKLR and Kenya Pipeline Company Limited vs Mafuta Products Limited [2014] eKLR amongst several other cases where it was held that no party should be shut out from ventilating its defence, that a court may set aside interlocutory judgment if a party had a reasonable defence which raises triable issues and that at all possible times, cases should be heard on merit.

19. It is my considered view that despite the appellant having acted negligently in handling its matter, it is only fair and just to allow it to exercise its fundamental right to be heard as enshrined in Article 50 (1) of the Constitution of Kenya. The appellant has shown its intentions to be heard and it is my view that it would not be in the interests of justice to deny them an opportunity to be heard. The prejudice that the 1st Respondent would suffer for the delay in the conclusion of his case by having it heard on merit can be compensated by way of costs.

20. In that regard, I do allow the appeal.

21. The ruling dated 24. 08. 2021 is hereby set aside and substituted with an order allowing the appeal.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 12TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………for the Appellant………………………………………for the Respondents