Analysis, Issues and Determination
6.After careful considered the application, the replying Affidavit, the Applicants’ submissions, as well as the authorities and the law cited, I find the following issues determination:a.Whether the prayer for setting aside the judgment delivered herein is merited.b.Whether the Defendants should be granted leave to file their defence.c.What orders to issue and who to bear costs?
7.I begin by analyzing the first issue. This is because the analysis of the second one depends on the outcome of the first one. If I were to find the first issue meritorious then it follows that a positive consideration of the second one is basically obvious. The consideration of Applications of this nature is discretionary. Whether a judgment is regular or irregular, in determining whether or not to set it aside, the discretionary power of the Court very wide. However, where the judgment is irregular, in that it is found that a party was not served, the Courts have little discretion: they ought to set it aside ex debito justitiae, as will be discussed below. In essence the principles applicable in the two scenarios differ, even though the Court is called upon to exercise discretion. And even then, when exercising the discretion the Court should do so judiciously.
8.Therefore, the first question this Court considers is whether the judgment herein is a regular or irregular one. As stated above, in case I find that it was irregular, I have to set it aside ex debito justitiae. It means I set it aside as a matter of right. This is because to permit it to stand would amount to condemning a party unheard. That would run counter to the well-settled and revered principle of natural justice that one should not be condemned unheard. The principles of natural justice override the discretion of a Court.
9.Thus, in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711 the Supreme Court of India emphasized on the importance of the right to be heard as follows:
10.The Applicants herein appear to raise the same issue. Thus, on the one hand, the Applicants contended that they were not served with summons to enter appearance. If their argument is to be taken to be true, then Defendants indirectly implore the Court to that the matter proceeded in their absence without giving them opportunity to be heard. Thus, they were condemned unheard. But their contention should be juxtaposed and compared with that of the Plaintiffs. Therefore, on the other hand, the Respondents contend that the Applicants were given opportunity to be heard but they squandered it. The Plaintiffs argue that the Defendants were served but they never chose to defend the case. Further, that when the suit papers where served on the Defendants, they even called on the Plaintiffs to go to the offices of the Defendants, the firm of Ms. Risper Arunga & Co. Advocates, for a discussion on the matter but the Plaintiffs refused to do so. As a consequence, they should not be given opportunity to be heard. These were better explained by the Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another  eKLR. In it the Court stated as follows:-
11.In the instant Application, this suit proceeded for hearing by way of formal proof. The Court must have interrogated the circumstances of the absence of the Defendants in the pleadings and was satisfied as to the service of the summons to enter appearance. That is the fact that this Court is called upon to analyze and make a finding on. In essence, the Court is to be concerned more than anything else the fact of the allegation of the service of summons because in essence that is what the Defendants seem to fault.
12.The Applicants relied on Order 10 Rule 11 of the Civil Procedure Rules in making their Application. The Rule provide as follows:
13.The operative term used in the provision is “may”, which imports the idea of permission and discretion. The discretion is wide but it has to be exercised judicially. Its purpose is to further the ends of justice. In John Mukuha Mburu v Charles Mwenga Mburu (2019) eKLR wherein the case of Shah vs Mbogo (1979) EA 116 was cited, it held that the discretion is very wide. The Court also stated thus:
16.In Wachira Karani v Bildad Wachira  eKLR Justice Mativo, cited the case Ongom vs. Owota where the Court opined that for one to succeed in setting aside of an ex-parte judgment, the court must be satisfied with two things namely:(i)Either that the Defendant was not properly served with summons; or(ii)That the Defendant failed to appear in court at the hearing due to sufficient cause.
17.The above analysis then leads this Court to consider how the Plaintiffs satisfied the Court that the Defendants had been served with summons to enter appearance. I have looked at the Affidavit of service that was sworn by one Patrick Simiyu the Process Server, on 21/12/2017, and filed in Court the same day, together with a Request for Judgment. I find it very clear and very detailed in the manner in which service was effected on each and every Defendant on 08/12/2022. Thus, the judgment in this suit was regular.
18.Even though this Court has found above that the judgment was regular, it still obliges the Court to consider whether or not the intended Defence raises triable issues. Triable issues do not necessarily imply that the Defence be one that must succeed. However, it must show that the Applicants have a Defence case which raises questions which would make the Court pause to say, “this issue calls for further investigation.” Thus in the case of Job Kwach -vs- Nation Media Group Ltd it was held as follows:-
19.A defence that raises triable issues is, in my view, at the extreme opposite side of a defence that consists of mere denial. On mere denial defence, it has been held that it is not a sufficient defence. Thus, in the Raghbir Singh Chatte vs. National Bank of Kenya Limited Civil Appeal No. 50 of 1996, the Court of Appeal held:
21.I have looked at the draft defence annexed to the Affidavit in support of the instant Application and marked as LW 1. It is the classic example of a mere denial. Apart from the descriptive formal paragraphs of the document and those that admit the jurisdiction of the Court and the non-existence of a suit or previous proceedings, all others are mere and bare denials. In my view the said draft defence is not one that is worth going for trial. Thus, it is not one that can form the basis for disturbing the Judgment herein.
22.The upshot is that the Application dated June 30, 2022 is wholly unmerited. It was an afterthought action that was designed to delay the fruits of justice, brought too late in the day, soon after execution has commenced. Once more, I notice also from the documents that were filed with the Plaint, it is clear, as was deponed by the Respondent that the law firm now representing the Defendants herein had indeed done the Partnership Agreement between the parties. How it turns out that she could represent by one of the parties, it a matter of unprofessional conduct. The Application is hereby dismissed with costs to the Respondents.Orders Accordingly.