[2022] KEHC 10379 (KLR)

Wambui (Suing as the legal representative of the Estate of Maureen Muthoni Wambui) v Kimani & 2 others (Civil Suit 333 of 2014) [2022] KEHC 10379 (KLR) (Civ) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10379 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 333 of 2014

DO Chepkwony, J

May 12, 2022

Between

Priscilla Wambui

Applicant

Suing as the legal representative of the Estate of Maureen Muthoni Wambui

and

Richard Kimani

Respondent

and

Rose Mugo

1st Defendant

Express Connections Limited

2nd Defendant

Ruling

1. Before this court for determination are two Applications. One by the 3rd defendant dated and amended on July 14, 2021 and the other by the 2nd defendant dated and amended on September 22, 2021.

2. The 3rd defendant’s Application dated and amended on July 14, 2021 is seeking for orders that;1. Spent;2. Spent;3. Spent;4. This honourable court be pleased to set aside the Judgment and Decree issued against the 3rd defendant/applicant and the 3rd defendant/ applicant be allowed to defend the suit on merit;5. This honourable court do grant leave to the 3rd defendant’s advocate to come on record and act on behalf of the 3rd defendant/applicant;6. Pending the hearing and determination of this Application inter-partes and pending the hearing of this suit, Summons be issued against the Process Server for purposes of cross-examination on the process of effecting the alleged service of Summons and Proclamation Notice upon 3rd defendant/ applicant;7. The honourable court do order in the alternative to the above that the 3rd defendant/applicant be struck out of proceedings; and,8. Costs of this Application be in the cause.

3. It is premised on the grounds therein and the depositions in the supporting affidavit of Mrs. Mary Mwangi sworn on July 14, 2021. It is stated that no Proclamation Notice was ever served upon the 3rd defendant/applicant, its agents, employees or persons working under its instruction and as such the attachment of the 3rd defendant’s Motor Vehicle Registration No.KBP xxxx Isuzu FRR and the Notification of Sale are irregular. Also, that the 3rd defendant was never served with Summons nor pleadings and was surprised to learn of an existing Decree when the Vehicles Registration Nos.KBR xxxx Isuzu FRR and KBP xxxx Isuzu FRR were attached and advertised for public auction. The 3rd defendant/applicant contends that it has never appointed any firm of advocates to act for it in this matter at all and has never known of the existence of this suit. Further that it has never been served with the notice of entry of Judgment at any time as required by law. It is stated that this Application has been brought promptly without undue delay. The 1st defendant/applicant goes on to state that he did not deliberately miss to attend court for hearing of this matter at any time since they were never served. As such, it is in the interest of justice that this matter be heard on merit and the 3rd respondent be struck out of the impugned proceedings. It avers that the respondent/plaintiff will suffer no prejudice if the orders sought are granted.

4. The 2nd defendant filed a replying affidavit dated July 9, 2021 and supported the 3rd defendant’s Application. She further made her case through which she later filed an independent Application.

5. The 3rd defendant’s application is opposed by the plaintiff vide a replying affidavit of Priscilla Wambui sworn on February 16, 2021. It is stated that the 3rd defendant was at all times represented by the Firm of Matiri, Mburu & Chepkemboi Advocates who entered appearance vide a Memorandum of Appearance dated January 12, 2015. Also, that the 3rd defendant went ahead to file a Statement of Defense dated January 19, 2015 in opposition of the plaintiff’s claim. It is contended that the 3rd defendant was served with all notices from mention to hearing via its advocates on record at the time, M/S Matiri, Mburu & Chepkemboi Advocates. That the Judgment was entered in favour of the plaintiff’s with costs and the plaintiff’s Advocates then wrote to the 3rd defendants to demand for settlement of the Judgment amount so as to avoid execution vide a letter dated December 3, 2019. Further, that the Bill of Costs was drawn and filed on December 5, 2019 and a Taxation Notice was served on the Defendant’s on February 18, 2020. She goes on to aver that a Proclamation Notice dated November 11, 2020 and a Notification of Sale dated November 23, 2020 were also duly served on all the defendants. it is stated that the 3rd defendant’s Application herein is made in bad taste and is an abuse of the court process with the sole intention of further delaying the matter. Further that the 3rd defendant was personally made aware of the suit against it when the main suit was filed in 2014 and that it is attempting to use the instant Application to appeal against the Judgment of this court knowing that the time within which to appeal has since lapsed. The plaintiff prays that the instant Application be dismissed with costs for want of merit.

6. The 2nd defendant’s Application amended and dated November 22, 2021 on the other hand is seeking for orders that;1. Thishonorable court be pleased to grant leave to the firm of M. Murimi& Company Advocatesto come on record on behalf of the 2nd defendant herein;2. Spent;3. Spent;4. Thishonourable court be pleased to set aside the Judgment, Decree and all consequential orders and proceedings thereto ex debito justitiae;5. The honourable court be pleased to grant the 2nd defendant/applicant unconditional leave to file a defence herein in terms of the annexed draft defence and service thereof be dispensed with;6. This honourable court be pleased to order the plaintiff herein to effect service of Summons to enter appearance and plaint upon the 2nd defendant herein; and,7. Thishonourable court be pleased to order that the instant suit be heard de novo.

7. It is premised on the grounds on the face of it and the depositions in the supporting affidavit of Rose Mugo sworn onSeptember 22, 2021. It is stated that the 2nd defendant/applicant has become aware of the instant suit vide the 3rd defendant’s Application dated December 7, 2020, now dated and amended on 14th July, 2021, and that the Judgment and Decree issued have adversely affected the 2nd defendant since it was issued in her absence. The 2nd defendant insists that she has neither been served with pleadings or summons to enter appearance nor ever appointed any firm of advocates to act on her behalf in the instant suit, emphasis placed on never appointing the Firm of M/S Matiri Mburu & Company Advocates. Also, that the 2nd defendant has never been served with the Notice of Entry of Judgment as required by law. It is contended that the 2nd defendant has been condemned unheard which is in violation of her constitutional right and principal of natural justice to be heard. Further that the 2nd defendant continues to suffer prejudice with the apprehension that the plaintiff will proclaim, attach and sell her assets in satisfaction of the default Judgment. That no prejudice will be occasioned on the plaintiff if this Application is allowed and that it is in the interest of justice that the same is allowed.

8. The 2nd defendant’s Application is opposed. The plaintiff filed various replying affidavits. A Further replying affidavit sworn and dated September 23, 2021 in Response to the 2nd defendant’s replying affidavit sworn on July 9, 2021 and a Further replying affidavit sworn on November 5, 2021. It is stated that the 2nd defendant as the record shows was duly served with summons to enter appearance together with the Plaint and the accompanying documents on November 11, 2014 and she instructed one Beth Gathimba to receive service on her behalf. That as a consequence, the 2nd defendant together with other defendants appointed the Firm of Matiri, Mburu & Company Advocates to enter appearance on their behalf via a Memorandum of Appearance dated January 12, 2015 and the said firm at all times received service on her behalf. The plaintiff intimates that it is not her duty to confirm or verify whether advocates who have entered appearance on behalf of a party are duly appointed by them or not. Further that the 2nd defendant through its advocates on record were duly served with the Notice of Entry of Judgment dated June 24, 2019. The 2nd defendant’s assertion as to denial of right to heard is denied and the plaintiff avers that she had the duty to follow up on her case after being served. Further that the instant suit was adjourned on numerous times at the behest of the 2nd defendant. The plaintiff contends that its been 8 years since the demise of her daughter due to the defendant’s negligence and that reopening the case will add salt to the anguish she has had to endure all these years. It is the plaintiff’s contention that litigation must come to an end and justice delayed is justice denied. It is her prayer that the instant Application must be dismissed with costs since the record clearly shows that due process was followed all through the life of this suit.

9. Both Applications were canvassed by way of written submissions which I have read and considered.

10. I will determine both Applications simultaneously since they both raise similar issues. Having read through the application, respective affidavits and submissions, I will also adopt the issues as framed by the plaintiff in her submissions for determination of the two application to wit;a.Whether service of summons to enter appearance was effected on the 2nd and 3rd defendants;b.Whether this honorable court should set aside the Judgment and all consequential orders ex debito justitiae; and,c.Whether this court should grant the 2nd and 3rd defendants leave to file their defenses.

11. On the first issue, I have seen an affidavit of service sworn by one Josephat Kutekha Khatikwi marked as PW1 detailing how service was effected upon the 2nd and 3rd defendants. I have also seen a Memorandum of Appearance marked as PW3, drawn and filed by the Firm of M/S Matiri, Mburu & Chepkemboi asking this court to enter appearance on behalf of all the defendants in the suit. There is also the 1st page of the Plaint where at the right side of it, there is a signature, name and the word ‘received’ written on it. The name is R.M Gathimba and I believe the signature is hers. A Statement of Defence is also on record on behalf of all the defendants. The court of Appeal in the case of Equatorial Commercial Bank Limited v Mohansons (K) Limited [2012]eKLR, held:-“We definitely appreciate and agree that the object and scope of summons is to make the defendant aware of the suit filed against him and to afford him time to appear and follow the process of law.”

12. The 2nd and 3rd defendants claim not to have known of the existence of this suit for want of service. They want this court to believe that someone from the blues entered appearance on their behalf and filed a statement of defence with facts of their own creation. It is difficult to believe this. By entering appearance, the 2nd and 3rd defendants confirmed that the existence of this suit has been brought to their attention and any claim of not being served is not true.

13. It is worth-noting that once appearance was entered on their behalf and a statement of defence filed, the Plaintiff was led to believe that parties had accepted service and were fully participating in the matter. After all, the firm of advocates that is claimed to have entered appearance on behalf of the 2nd and 3rd defendants without their authority has not been called to testify to this assertion and no evidence has been tendered to this court to prove the same. I totally agree with the Plaintiff that it is not her duty to verify whether an advocate who has entered appearance on behalf of a party was duly appointed by the said party or not. At this stage, the 2nd and 3rd Defendants are estopped by conduct and by law from claiming otherwise as per section 120 of the Evidence Act (cap 80), which provides: -“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

14. In view of the aforesaid, I am satisfied and inclined to agree with the court that the 2nd and 3rd defendants were duly served.

15. I now turn to the second issue which is whether to set aside the ex-parte Judgment of this court. The principles applicable in determining whether to set aside an ex-parte Judgment were laid out by the Court of Appeal in the case of Pithon Waweru Maina v Thuka Mugiria [1983] eKLR as follows:“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 76C 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 116at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48 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.

16. Having found that the 2nd and 3rd defendants were duly served with summons to enter appearance, I am satisfied that they intentionally chose not to attend court for the prosecution of this matter and have only sought the attention of this court when it is convenient to their situation. They are not deserving of the discretion of this court.

17. The third and last issue is whether the applicant should be granted leave to file their defenses. In view of the findings, on the first and second issue, this issue has been overtaken by events and I do not wish to belabor on the same.

18. Owing to the foregoing, I find the 2nd and 3rd defendants’ Applications dated and amended on September 22, 2021 and July 14, 2021 respectively lacking in merit and are both dismissed with costs to the plaintiff.Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF MAY, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Joy Amani holding brief for Dr. Mulubwa for Plaintiff/RespondentMr. Muthoka counsel for the 2nd Defendant.