Mutua v Mutua (Civil Case E259 of 2021)  KEHC 13557 (KLR) (Civ) (7 October 2022) (Ruling)
Neutral citation:  KEHC 13557 (KLR)
Republic of Kenya
Civil Case E259 of 2021
JK Sergon, J
October 7, 2022
1)The plaintiff via an application dated February 1, 2022 sought the following order:
2)The respondent opposed the application via a replying affidavit dated May 23, 2022.
3)The plaintiff via his submissions states that a default judgment was entered on February 6, 2020 against the defendant to pay child support by the circuit court for the County of Wayne in Michigan, USA.He contends that despite being served with the notice of judgement, the defendant willingly refused to make any efforts towards the payment of child support.
4)He states that in the present suit, the defendant failed to file and serve a defence despite being served with summons. He cites the case of Harith Sheth T/A Harith Sheth Advocates v Sharma Charania  eKLR where it was stated that;
5)Finally, the plaintiff further submits that the defendants filed a defence dated May 23, 2022 irregularly after this application had been filed and without leave of court and that the plaintiff will suffer prejudice would be denied the opportunity of enjoying the fruits of the judgement. He also submits that denying an order of summary judgement would be against the best interest of the child.
6)The defendant in her replying affidavit states that she was not aware of any divorce proceedings filed against her in the United States of America.
7)She states that she was never served with summons, demand, notice notifying her of the current suit and only came to read about it in the media post tagged by political competitors. She then contacted her advocates who advised her to enter appearance while she awaits service. Having not been served, her advocates tried to get hold of the alleged pleadings and upon perusal found that there was an affidavit of service that claimed to have forwarded the same to an email address she had stopped using for a due to a huge load of spam messages and threats.
8)She contends that her defense filed by her advocates does raise triable issues and prays that the defense be deemed as duly filed and that the application be dismissed with costs.
Analysis and determination
9)The main issue for determination is whether the court can grant summary judgement against the defendant herein. The conditions for granting a summary judgement are provided for in Order 36 rule 1 of the Civil Procedure Rules which states thus:i.In all suits where a plaintiff seeks judgment for-a.A liquidated demand with or without interest; orb.the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasserWhere the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.ii.The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.iii.Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.Rule 2 provides that
10)In this case, summons were served upon the defendant on November 1, 2021. The defendant entered appearance on December 6, 2021 but did not file a defence whatsoever. She contends that she had not been served with the pleadings and upon request for perusal by her advocates, realized that service had been effected through an email she no longer uses. She filed her defence, without leave, on May 23, 2022 after the application for summary judgment on February 1, 2022. This was nearly 6 months after she entered appearance.
11)In Sebel District Administration v Gasyali & Others  EA 300, the court, observed that: -
12)The defendant has a right to a fair hearing as envisaged in the Constitution of Kenya . Since the defence was already filed, it is upon the court to check whether it raises any triable issues, if at all summary judgement is to be granted. Denying the defendant audience would be denying her the right to a fair hearing.
13)In determining the conditions for granting summary judgment, the court in Job Kwach v Nation Media Group Ltdheld follows: -
14)The issue in contention in this suit is the enforcement of a foreign judgement.Section 9 of the Civil Procedure Act provides for the cases when a foreign judgment provides as follows: -
15)The court in the case of ABSA Bank Uganda Limited (Formerly Known as Barclays Bank of Uganda Limited) v Uchumi Supermarkets PLC (Civil Case E316 of 2020)  KEHC 14 (KLR) (Commercial and Tax) (9 September 2021) (ruling) held thus concerning the enforcement of foreign judgments.
16)The court, upon ascertaining that the above conditions have been met, need not delve into the substantive issues of the case as they were already heard and determined in the competent foreign court. The court only has to ascertain that due procedure was followed before recognizing and enforcing the foreign judgement.
17)The defendant avers that she was not privy to any divorce proceedings against her and was not served with any notice, demand or court summons to the same. In addition to this, the defendant deposes that she was not served with the present application and only became aware of it after her advocates were served with a mention notice. There is an affidavit of service on record deposed by one Kivusu Amos Matambu. He avers that he received the application on May 20, 2022 and served it upon the defendant through her advocates via email.
18)It is apparent that sufficient notice was not accorded to the defendants given that the suit was fixed for mention on the same day they were served with the application. Order 36 rule 3 of the Civil Procedure Rules, requires that at least seven days’ notice be given to the defendant to accord him/her time to show cause.
19)The rules of natural justice entail that a person be granted adequate notice of proceedings against him/ her and the right to adduce and challenge evidence. This was the position in Geothermal Development Company Limited v Attorney General & 3 Others  eKLR where it was held that:
20.As held in the ABSA Bank Uganda Limited (Formerly Known as Barclays Bank of Uganda Limited) v Uchumi Supermarkets PLC case above, the onus of proving the competence of the foreign court and the legality of the proceedings lies on the plaintiff. I find that the plaintiff needs to furnish the court with the proof that he indeed notified the defendant of the foreign court’s proceedings and the current application. Without that, the court cannot grant summary judgement.
21.In the end, I find the plaintiff’s application to be without merit, it is dismissed with parties bearing their own costs.DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022....................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant