[2020] KEHC 1143 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 218 OF 2014

WANANCHI GROUP (K) LIMITED......................APPELLANT

=VERSUS=

MOSES MUHATIA MUKURU............................RESPONDENT

RULING

The application dated 24th March, 2020 seeks the following orders: -

1. THAT the orders granted on this case by the High Court on the 10th day of April, 2019 be vacated and/or set aside as the defence has not been filled within the stipulated period of 14 days.

2. THAT the judgment delivered by the Lower Court on the 30th day of January, 2014 be deemed to be valid and still on record as there is no defence filed by the Defendant and the 14 days given by the High Court have lapsed and neither have the orders been extended nor complied with.

3. THAT the Plaintiff be at liberty to execute the Judgment delivered by this Honourable Court to recover the outstanding decretal sum, costs and interest at Court’s rate.

4. THAT the amount of money deposited in a joint account at Stanbic Bank namely account number 0100004051275 opened on the 5th day of August, 2015 in the joint names of KEMBI – GITURA AND COMPANY & GULENYWA JONATHAN & CO. ADVOCATES be released to the firm of M/S GULENYWA JONATHAN & CO. ADVOCATES for onward transmission to the plaintiff.

The application is supported by the affidavit of Moses Muhatia Mukuru, the Plaintiff. The respondent filed a replying affidavit sworn by Edith Gathara Advocate. Miss Gulenywa appeared for the applicant. Counsel urged the court to grant the application and allow the applicant enjoy the fruits of his judgment. The respondent filed an appeal against the decision of the trial court. The appeal was allowed and the respondent was to file its defence before the magistrate’s court within fourteen (14) days. No defence been filed. The appellant has taken too long to take any action. The orders granted to the respondent has lapsed. The decretal sum was deposited in a joint account. Counsel contend that the applicant should be allowed to access the funds in the bank. No efforts were made to find out if the judgment had been delivered. The intended defence does not raise any triable issues. Counsels were served with notices for the delivery of the judgment. All along the lower court file has been available yet no defence was filed.

Miss Wamboi appeared for the respondent. Counsel informed the court that they were not aware that Justice Mbogholi had delivered the judgment. The matter was in court on 26th November, 2018 and judgment was to be on notice. No notice was issued. The judgment was delivered on 10th April, 2019. There was no attendance by either party. The respondent only became aware of the judgment in August, 2020. Since the respondent was not aware of the judgment, they could not comply with the court orders. The decretal sum is secure in the back. They tried to check with the lower court but were informed that the file had not been returned.

The court record shows that the matter was in court on 20th September, 2018. Directions on the appeal were given. Only counsel for the respondent was present in court on that day. The appeal was to be determined by way of written submission. On 25th October, 2018 the matter came up for mention to confirm compliance. Counsels had not complied and it was fixed for mention on 26th November, 2018. Miss Wamboi and Miss Makori appeared in court on 25th October, 2018 for the parties. On 26th November, 2018 Miss Wamboi appeared for the appellant while Miss Gulenywa appeared for the respondent. Judgment was to be delivered on notice.

The record shows that on 10th April, 2019 the judgment was delivered by justice Mbogholi. The handwritten record indicates that Mr. Gachuhi held brief for Miss Wamboi for the appellant while Miss Gulenywa appeared for the respondent. The appellant was given 14 days to file its defence before the trial court. The judgment further directed that the lower court file be remitted to the lower court so that the appellant was to file its defence within 14 days. It is therefore evident that a counsel appeared in court for the appellant and took the judgment. Miss Gulenywa submitted that she stayed in court that day and had the judgment delivered. There is no indication from the appellant that it sought a copy of the judgment. There is no letter written to the court asking whether the judgment was delivered. It appears that it is the current application which has awaken the appellant from its one year slumber. I will attribute dishonesty on the part of the appellant’s Counsel since judgment was delivered in the presence of a counsel who held brief for Miss Wamboi who had all along appeared for the appellant.

The applicant is equally to blame. Miss Gulenywa was in court when the ruling was delivered. She never wrote to her colleague seeking a copy of the filed defence or even threatening to execute. The current application was filed almost one year after the judgment was delivered.

The plaintiff’s claim before the trial court arises from an Industrial accident. The plaintiff sustained electric shock while climbing on a ladder to fix some cables. A colleague was holding the ladder. This is as per the plaintiff’s evidence before the trial court. Justice Mbogholi Msagha in his judgment of 10th April, 2019 observed that the draft defence raises issues which should be subjected to trial. I do find that in the interest of justice, the appellant ought to be allowed to defend the suit before the trial court. There are triable issues to be determined by the trial court.

The application dated 24th March, 2020 is hereby disallowed. The appellant to file and serve its defence before the trial court within 14 days hereof. In the event that no defence is filed as directed herein, the plaintiff shall be at liberty to execute or seek the release of the money deposited in the joint account. Parties shall meet their respective costs of this application.

Delivered and Dated at Nairobi this 7th Day of December, 2020

S. J. CHITEMBWE

JUDGE

Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:

……………………………..for the Appellant

……………………………..for the Respondent

……………………………..Court Assistant