[2022] KEHC 16153 (KLR)

Trent Developers Limited v Ndungu & another (Civil Appeal 38 of 2019) [2022] KEHC 16153 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16153 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 38 of 2019

JK Sergon, J

November 11, 2022

Between

Trent Developers Limited

Appellant

and

Nathan Loyd Ndungu

1st Respondent

Jenniffer Mukonyo Mbogo

2nd Respondent

(Being an appeal from the ruling of the Milimani Senior Resident Magistrate Court of Kenya at Nairobi by Hon. D.O. Mbeja delivered on 2nd January, 2019))

Judgment

1. On January 2, 2019, Hon. D. O. Mbeja (Mr.) learned Senior Magistrate delivered his ruling whereof he dismissed the appellant’s application dated August 9, 2018. Being dissatisfied with the dismissal order, Trent Developers Ltd the appellant herein, preferred this appeal and put forward the following grounds of appeal:-i.The learned trial magistrate misdirected himself in finding that there had been proper service of summons on the appellant.ii.The learned trial magistrate misdirected himself in totally disregarding the counterclaim by the appellant in ordering the appellant to deposit half the decretal sum in court.iii.The learned trial magistrate erred in the fact by failing to appreciate that the claim by the respondent was subject to proof and therefore advance payment of the decretal sum would prejudice the appellant if the appellant succeeds at the trial.iv.The learned magistrate failed to give effect to the clear defence of breach of contract that was apparent from the evidence.v.The learned magistrate condemned the appellant to pay half the decretal sum without going through a trial when an award of costs would be adequate.vi.The learned magistrate imposed on the appellant a harsh and onerous condition for setting aside the judgment.

2. When the appeal came up for hearing, this court gave directions to have the same disposed of by written submissions.

3. I have re-evaluated the arguments presented before the trial court. I have also considered the rival submissions. Before delving deeper in the substance of this appeal, let me set out in brief the background of this appeal. The appellant took out the motion dated August 9, 2018 before the trial court whereof he sought for an order to set aside the exparte judgment and also sought for leave to defend the suit and to file a counter-claim against the plaintiff.

4. The plaintiff averred that the exparte judgment was obtained by fraud and misrepresentation since it was never served with the summons to enter appearance.

5. The respondents namely Nathan Loyd Ndungu and Jennifer Mukono Mbogo, opposed the application arguing that the appellant was properly served. The learned Senior Resident Magistrate after hearing the parties came to the conclusion that the appellant was duly served hence the exparte judgment was entered regularly.

6. The learned magistrate further stated that the appellant did not demonstrate any prejudice or injustice it stands to suffer if the order was denied. The trial Senior Resident Magistrate applied the overriding objective and proceeded to allow the appellant’s application by setting aside the exparte judgment and gave the appellant leave to defend the suit on condition that it deposits in court half the decretal sum within 21 days. In default the respondents were at liberty to execute the exparte judgment.

7. The record shows that the decretal amount as of on May 16, 2018, stood at ksh.6,500,000/=. Though the appellant put forward a total of six (6) grounds of appeal, the aforesaid grounds can be determined by two main grounds. The first main ground is to the effect that the learned Senior Resident erred when he held that there was proper service. Secondly, that the trial magistrate erred in granting the appellant conditional leave to defend thus restricting the appellant’s right to a fair trial.

8. On the first issue as to whether there was proper service, the rival parties made their submissions. It is the submission of the appellant that there was no proper service. The respondents are of the contrary submission that there was proper service. I have perused the record and it is apparent that the trial court relied on the affidavit of service deponed by Samuel Njuguna to find that there was proper service.

9. In paragraph 5 of the affidavit of service the process server clearly stated that he effected service upon one Alfred Ologi upon him confirming to the process server that he had instructions and authority from the appellant to receive court documents on its behalf.

10. The appellant did not deny the assertion by the process server. I find that the learned Senior Resident Magistrate cannot be faulted in concluding that there was proper service.

11. As to the second ground of appeal, the appellant is of the submission that the condition imposed upon the appellant before defending the suit has impeded its right to be heard on merits. It is also argued that the trial magistrate assessed and determined the appellant’s counter-claim without taking evidence and thus imposed a difficult condition against the appellant.

12. The trial magistrate set aside the default judgment in exercise of the overriding objective and gave the appellant conditional leave to defend the suit. The appellant was required to deposit a sum of ksh.3,000,000/= being half the decretal sum. The record shows that the appellant filed a counter-claim seeking to be paid by the respondents a sum of kshs.5,500,000/=.

13. The appellant has argued that the trial magistrate imposed a punitive condition which has now impeded his right to access justice. With respect, I am persuaded by the appellant’s argument that the condition imposed against the appellant is punitive. The trial magistrate failed to take into account the appellant’s intended counter-claim which was brought to his attention in the draft defence and counter claim. If the condition is left to stand the same will obviously impede the appellant’s right to access justice. I find the condition imposed to be punitive and selective.

14. In the end, this appeal partially succeeds. It is allowed. Consequently, the order setting aside the exparte judgment on condition that the appellant deposits half the decretal sum is set aside and is substituted with an order setting aside the default judgment and the appellant is allowed to defend the suit unconditionally. Each party to meet its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J. K. SERGONJUDGEIn the presence of:.........for the Appellant.........for the 1st Respondent.........for the 2nd Respondent.........for Interested Party