[2022] KEHC 2564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CIVIL APPEAL NO. 35 OF 2020

WANJAU CHARLES WILSON..................................................................1ST APPELLANT

SILVER BILL...............................................................................................2ND APPELLANT

VERSUS

CHRISTINE ANYANGO AUMA(suing as the legal representative of the Estate ofthe late

PETER OUMA NGADA....................................................................................RESPONDENT

(An appeal from the ruling of Hon. B Ochieng, Chief Magistrate,in Kakamega

CMCCC No. 42 of 2016, delivered on 20th February 2020)

JUDGMENT

1. The suit at the primary court was initiated by the respondent against the appellants, and it arose from a fatal road traffic accident that allegedly happened on 18th October 2014, involving a motor vehicle, belonging to the appellants, and the deceased herein. The respondent sought general and special damages, costs of the suit and interests. The appellants were served, but neither appeared nor filed defence, and interlocutory judgment was entered against them. The trial court took evidence, at formal proof, and found in favour of the respondent. The appellants then filed a Motion, dated 3rd December 2018, seeking to set aside the ex parte judgment. The application was canvassed by way of written submissions and the cross-examination of the process server who had served the originating papers on the appellants. In a ruling that was delivered on 20th February 2020, the trial court found that the entry of the exparte judgment was regular, as the appellants had been properly served with the relevant court process.

2. The appellants were aggrieved, hence the instant appeal. It raises several grounds – that no summons to enter appearance was ever issued by the court, no such summons was ever contained in the court file , and neither the process serve nor the respondent could provide evidence of any such summons against the 1st appellant; the trial court failed to find that the summons dated 9th January 2016, attached to the process server’s affidavit, was in the name of the 2nd defendant and not the 1st appellant as appearing in the plaint dated 8th April 2016, and there was, therefore, no evidence of service of summons and plaint on the 1st appellant; the trial court failed to find that there was no service upon the 2nd appellant as the affidavit of service of the process server only talked about service on the 1st appellant and not the 2nd appellant; the trial court failed to find that the summons to enter appearance was defective as it bore the date of 9th January 2016 , which was way ahead of 8th February 2016 when the suit was filed; the trial court erred in entering judgment against the 1st appellant when no summons had been issued for service upon him and against the 2nd appellant when there was no evidence in the affidavit of service that he had not been served with summons; that the 1st defendant was allegedly pointed out to the process server by a total stranger; the entry of judgment was irregular to the extent that there was no summons issued for service upon the 1st appellant and there was no evidence of service of summons upon the 2nd defendant; there was no certificate of posting to demonstrate that the notice of entry of judgment was sent to the appellants by way of registered post; the court did not consider that the appellants had a meritorious defence, as the issues of contributory negligence and res ipsa loquitor arose; the constitutional right of the appellant was breached when the trial court failed to weigh the inconvenience of the respondent as against shutting out the appellants on a technicality, and the trial court did not consider the written submissions and authorities filed and cited by the appellants.

3. Directions were taken on 27th May 2021, for disposal of the appeal by way of written submissions. Both sides complied, by filing their respective written submissions, dated 30th June 2021 and 6th September 2021, respectively.

4. In their submissions, the appellants address three general grounds: that they were not served with the summons to enter appearance, that they have a good defence that raises triable issues, and that they have a constitutional right to be heard. On the first ground, they argue that summons was never issued in the first place in respect of the 1st appellant, and, therefore, the issue of his being served should not have arisen in the first place. Secondly, they argue that the summons allegedly served on the 1st appellant did not even bear his name. They rely on Margaret Nyutho-Kiarie vs. Dominic Kibigo Karanja & 2 others [2008] eKLR (Kubo J). Thirdly, they submit that the summons allegedly served was issued prior to the suit being filed. Fourthly, it is submitted that the summons allegedly served on the 1st appellant bore the name of the 2nd appellant. Fifthly, it is submitted that the 2nd appellant was never served. The issue of the address of service for the appellants is also raised, that the address in the papers indicated Nairobi, but the summons was allegedly served within Kakamega. It is asserted that the affidavit of service relied upon was false. Rapando vs. Constatine Ouma & 6 others [2004] eKLR (Warsame J) and George K. Ndogo vs. Athman Mustafa Mohammed & another [2012] eKLR (Wendoh J) are cited to support the contentions. On the second general ground, that the defence raises triable issues, it is submitted that the trial court failed to consider that the appellants had a good defence, which raised the issue of contributory negligence, and points at the inquest proceedings in Kakamega CMC Inquest No 3 of 2015, where the appellant were exonerated from blame, but the trial court allegedly ignored all that. Peter Weyama vs. Emannuel Odungu Orodi [2015] eKLR (Sergon J) and John Peter Kiria & another vs. Pauline Kagwiria[2013] eKLR (JA Makau J) are cited to support these arguments.

5. In his written submissions, the respondent argues that the 1st appellant had not denied the 2nd appellant was the name of its business, and accuses the 1st appellant of giving false information to the police with respect to ownership of the accident vehicle. It is further submitted that there was no affidavit by either of the appellants denying that they had been served. It is further submitted that the ex parte judgment had been entered properly, for the same could not have been entered if there had been no summons and service of the same. It is further submitted that the draft defence comprised of mere denials, and Continental Butchery Limited vs. Nthiwa [1978] eKLR (Madan, Wambuzi & Law JJA) is cited for the proposition that if a bona fide triable issue was raised, then the defendant should be given unconditional leave to defend, but not in a case where the court thought that the defence was a sham. CFC Bank Limited vs. Charles K. arap Tanui [2008] eKLR (Lesiit J) is also cited, where the court said that once there was determination that a judgment was regular, the next issue would be whether the defendant had a defence on merits, which must not necessarily succeed but must be arguable.

6. I believe the three general grounds identified by the appellants summarise the issues for determination in this appeal. One, whether the appellants were served with summonses to enter appearance. Two, whether the appellants had a good defence. Three, whether the appellants could rely on the constitutional right to a fair hearing to upset a regular entry of an ex parte judgment. I shall deal with all three sequentially.

7. There are several sub-issues to the first ground of service. One, whether any summons for entry of appearance were ever issued by the court for service on the 1st appellant. Two, whether the summons allegedly served on the 1st appellant bore his name or that of the 2nd appellant. Three, whether the summons served were issued on a date prior to the filing of the suit itself. Four, whether the 2nd appellant was served with summons to enter appearance. Five, what the address of service for the two appellants was. Six, whether the 1st appellant was properly identified for the purpose of service. Seven, whether the alleged service was regular in the circumstances.

8. I have perused the original trial record to assist me address the issues raised. The plaint in that matter was lodged in court on 9th February 2016, going by the official court receipt number 7031927 and the date stamp on the plaint, dated 8th February 2016. According to the plaint, the 1st appellant resided and worked in Nairobi, and his address for purposes of service was given as PO Box 5855-00200 Nairobi. The 2nd appellant is described as a going concern within the Republic of Kenya, and its address was given as PO Box 23987-00100 Nairobi. There are three copies of summons to enter appearance, that were issued by the executive officer of the court on 9th January 2016, addressed to Silver Bill, of PO Box 23987-00100 Nairobi. There is an affidavit of service, sworn on 2nd December 2016, by a process server called Erick Swahili. He said that he served the 1st appellant with the papers somewhere along Canon Awori Street, near Kilimanjaro shop, within Kakamega Town, after he was introduced to him by one Peter Nduru. The respondent filed, on 3rd April 2017, a request for judgment, dated 3rd April 2017. The ex parte judgment was entered on 4th April 2017. Thereafter the matter was fixed for formal proof. There are affidavits of service sworn on 24th April 2017 and 21st July 2017, with respect to dates when the matter came up for formal proof, which indicate that the 1st appellant was served at Kakamega town, along Canon Awori Street, near Kilimanjaro Shop.

9. From that record, on the first sub-issue, whether there any summons was ever issued for service on the 1st appellant, I have not seen a copy of any summons to enter appearance issued in the name of the 1st appellant. What I can see are copies of a summons issued in the name of the 2nd appellant. The affidavit of service sworn on 2nd December 2016, returns a summons to enter appearance dated 9th January 2016, which is in the name of the 2nd appellant; and, during cross-examination, the process server conceded that the summons that he served did not bear the name of the person he allegedly served, the 1st appellant herein. Clearly, therefore, going by that record, no summons was ever issued by the court registry for service on the 1st appellant, and what was purportedly served on the 1st appellant was summons for appearance intended for another party. A summons to enter appearance invites a party to file an appearance, and a party cannot enter appearance on a summons that is not in their name. As the summons that was allegedly served on the 1st appellant was not in his name, it cannot be said that the same summoned him to appear, and, therefore, there was no proper service upon him at all.

10. The second sub-issue is about the date of the summons that was served. It was dated 9th January 2016, yet the suit the subject of the summons was filed on 9th February 2016. That raises questions on the validity of the summons served. The date on a legal document is what validates it. An anomaly with respect to a date cannot be presumed to be a typing error, the party relying on the document ought to explain the same. The respondent has made no effort to explain how the summons in question has issued before the suit was even filed. Such an error can cause the person allegedly served to justifiably question the validity of the process on which the summons is based. So, the summons allegedly served was not legitimate for it was allegedly issued a month before the suit it was summoning the 1st appellant to appear in was initiated. There might have been a mistake in the dating of the summons, but that mistake was not corrected, and the summons was served in that form, which was not legitimate. Service of court process is a legal process, it is critical that the documents served be documents that are themselves valid in content and form, for they set into motion processes that are critically important to the lives or livelihoods or business of the persons who are subject to the processes. So everything must be done right.

11. The other sub-issue is whether the 2nd appellant was served. As stated here above, the summons on record is in the name of the 2nd appellant. The record does not, however, have any document indicating whether the said summons was ever served on the 2nd appellant. The only affidavit of service, and which was the basis upon which the ex parte judgment was entered, sworn on 2nd December 2016, and filed herein on 3rd April 2017, indicates that the summons, bearing the name of the 2nd appellant was served on the 1st appellant. It does not indicate whether the 1st appellant received it on behalf of the 2nd appellant. The pleadings do not aver as to the nexus between the appellants, and it would be foolhardy to assume that a service on either of the appellants was good service on the other appellant. See Rapando vs. Constantine Ouma & 6 others [2004] eKLR (Warsame J). When the process server was cross-examined for the purpose of the application for setting aside, he asserted that he served both appellants, and that the two were related. Yet his affidavit of service does not say a word about the 2nd appellant. He produced no document to link the 1st appellant to the 2nd appellant. Indeed, during cross-examination, he said that the said affidavit and service was not in respect of the 2nd appellant, he did not know anything about the 2nd appellant, he never served the 2nd appellant and his affidavit did not refer to the 2nd appellant. There is, therefore, no material showing that the 2nd appellant was ever served for the affidavit of service only refers to the 1st appellant.

12. The other sub-issue relates to the addresses of service of the appellants. The plaint indicates that their addresses of service are in Nairobi, and specifically that the 1st appellant resided and worked for gain in Nairobi. That could raise questions as to why service had to be effected in Kakamega in respect of persons whose addresses of service were in Nairobi. There is no allegation on record that efforts were made to serve them at their usual addresses of service at Nairobi, and that they were eventually traced at Kakamega. There is no averment in the plaint that the two operated from Kakamega. In the affidavits of service, it would appear that the service was allegedly effected, on three occasions, along Canon Awori Street, near Kilimanjaro shop. If the appellants addresses of service placed them in Nairobi, how did the process server trace the 1st appellant in Kakamega for service. That narrative is necessary, in cases where the service is questioned, such as in the instant case. Service of court process can be effected anywhere, wherever the persons to be served are traced, but the process server has to lay some basis, where he has to return a service that he served the papers at a place other than at the address of service indicated in the pleadings, and the person served declined to accept service or accepted but declined to acknowledge the same by signing on the papers. Service of process, at a place other than at the address for service indicated in the pleadings, can raise questions, where the person allegedly served does not acknowledge the service, and a background in the affidavit of service would assist in answering those questions. Where no such explanations are given, then the process would be called to question.

13. The last sub-issue is with respect to the person who identified the 1st appellant to the process server for the purpose of service. According to the affidavit of service, the process server did not know the 1st appellant, and so he approached a random stranger along Canon Awori Street Kakamega, near Kilimanjaro Street, who then pointed out the 1st appellant as the person that the process server was looking for. The stranger is identified as a Peter Nduru. It is not explained how that person was related to the 1st appellant, or how he knew him, or why the process server sought to approach him of all the persons who were on Canon Awori Street at that time. The said Peter Nduru did not testify to confirm the contents of that affidavit of service.

14. Overall, there are serious questions about the summons to enter appearance in this matter. Firstly, the summons on record were issued a month before the suit herein was initiated, and they cannot possibly be valid. Even if there was evidence that they were properly served, the service would be of no moment, as it would of an invalid process. Secondly, no summons was ever issued in the name of the 1st appellant that were capable of being served on him. If he was served with the summons on record, which is not in his name, again the same would be of no moment, for the summons served did not relate to him, and it did not summon him to appear in the matter. Thirdly, there is no evidence that the said summons was ever served on the party named in it. The process said as much when he was cross-examined on 23rd January 2019. No nexus was brought out between the two appellants, to warrant one being served with process intended for the other. Fourthly, the fact that service was effected at Kakamega in respect of parties that the plaint indicates resided in Nairobi should raise eyebrows, particularly where no background is given as to why the same had to be effected at Kakamega rather than at the address of service indicated to be Nairobi. Finally, there is the issue of who identified the 1st appellant for service, a random total stranger. The conclusion that I draw from all this is that there was no proper service of the summons to enter appearance on the appellants, and, therefore, the ex parte judgment entered herein on 4th April 2017 was not regular.

15. Having disposed of the first general ground, let me advert to the second general ground, whether the draft defence raised triable issues. Of course, the consideration of this issue is of consequence only in cases where the court finds that the entry of judgment was regular, but the defendant had no arguable defence that raised triable issues, for it would be a waste of judicial time and resources to require the parties to go through the process of hearing the matter afresh only to arrive at the same conclusion or verdict. See George K. Ndogo vs. Athman Mustafa Mohammed & another [2012] eKLR (Wendoh J) and CFC Bank Limited vs. Charles K. arap Tanui [2008] eKLR (Lesiit J). I have already concluded that the entry of ex partejudgment was not regular, and I should not have to consider this question, for it will be merely academic. However, I will deal with it, since the parties addressed me on it. The respondent argues that the draft defence comprises of mere general denials and, therefore, there would be no need to hear the appellants. See Continental Butchery Limited vs. Nthiwa [1978] eKLR (Madan, Wambuzi & Law JJA). The appellants counter that with the argument that there are triable issues. They say that there is an averment that there was contributory negligence by either the deceased or the rider of the motorcycle registration mark and number KMCF 178H. They also argue that they would also be relying on the doctrine of res ipsa loquitor. I have perused the draft defence. It does indeed plead, at paragraph 6, about contributory negligence, and, at paragraph 7, on the applicability of res ipsa loquitor. The issue of KMCF 178H was introduced into the matter through paragraph 6 of the plaint, where it is pleaded that the deceased was riding the said motorcycle at the material time of the accident. Whether the deceased, as rider of that motorcycle, contributed to the occurrence of the accident is a triable issue, which is arguable, with respect to apportionment of liability. See Peter Weyama vs. Emannuel Odungu Orodi [2015] eKLR (Sergon J). It cannot be determined otherwise than by presentation of evidence. Res ipsa loquitor, which, in simple terms means that the accident speaks for itself, in terms of who was to blame, again is a triable issue, it is arguable, and determination of the question, as to whether res ipsa loquitorapplied, is dependent on concrete evidence adduced at trial. So, the draft defence does raise triable issues, and the defence is arguable on merits. See also Continental Butchery Limited vs. Nthiwa [1978] eKLR (Madan, Wambuzi & Law JJA), CFC Bank Limited vs. Charles K. arap Tanui [2008] eKLR (Lesiit J) and John Peter Kiria & another vs. Pauline Kagwiria[2013] eKLR (JA Makau J).

16. On the last general ground, breach of the constitutional right to a fair hearing, I am not persuaded that there has been any breach. The trial court came to the conclusion that it came to, based on its assessment of the material before it. It had the discretion to make the decision that it made, and, in making it, it did not breach any provision of the Constitution. The appellants were entitled to appeal, which is their constitutional right. They appealed and that appeal is being determined in this judgment. It cannot be then that a court discharging its constitutional, legal and judicial mandate, of deciding a matter, breaches the Constitution every time it arrives at a verdict which is disagreeable to any of the parties. The court could be wrong on principle or on the merits or on the exercise of its discretion, but that does not amount to breach of the Constitution. The issue of breach of the Constitution, in the context that it is being raised in this case, with respect to right to hearing, cannot arise where the law has provided for a right of appeal.

17. Finally, I find that there is merit in the appeal and I hereby allow it. I set aside the order of the primary court of 20th February 2020, and I substitute it with orders that the application dated 3rd December 2018 is allowed, the ex parte judgment entered on 4th April 2017 is hereby set aside and so is the judgment delivered on 31st August 2017, the appellants are granted fourteen days of date of this judgment to file and serve their respective defences, and the court file, in Kakamega CMCCC No. 42 of 2016, shall be remitted to the trial court, for the full hearing of the suit. Each party shall bear their own costs. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OFFEBRUARY 2022

W. MUSYOKA

JUDGE

MR. ERICK ZALO, COURT ASSISTANT.

MR. THUO, INSTRUCTED BY A. THUO KANAI ADVOCATES, FOR THE APPELLANTS.

MS. SHIBANDA, INSTRUCTED BY VA SHIBANDA & CO., ADVOCATES, FOR THE RESPONDENT.