Mulatya & another v Kyalo & another (Suing as the Legal Representatives of the Estate of Wycliff John Syengo - Deceased) (Civil Appeal E024 of 2021)  KEHC 15365 (KLR) (14 November 2022) (Judgment)
Neutral citation:  KEHC 15365 (KLR)
Republic of Kenya
Civil Appeal E024 of 2021
RK Limo, J
November 14, 2022
Rosemary Mutethya Kyalo
Stella Viata Wycliff
Suing as the Legal Representatives of the Estate of Wycliff John Syengo - Deceased
(Appeal arose from a Ruling delivered on 16th April, 2021 by Hon. S. Mbungi –Chief Magistrate in Kitui Chief Magistrate Court Civil Case No. 176 of 2019)
1.This appeal arose from a ruling delivered on April 16, 2021 by Hon S Mbungi Chief Magistrate in Kitui Chief Magistrate Court Civil Case No 176 of 2019.
2.That ruling was the subject of an application dated October 15, 2020 preferred by the appellants, the gist of which was the prayer to have a judgement entered in default of appearance to be set aside.
3.The appellants main source of grievance in the said application to set aside the exparte judgement was that they were not served with summons and plaint and only learnt about the judgement when their insurers asked them if they were aware of the judgement.
4.The respondent did oppose the appellant’s attempt to set aside the exparte judgement and the gist of their opposition was that the respondents were duly served and faulted them for approaching the court with unclean hands by, on one hand claiming non service while on the other, they were blaming their erstwhile advocates for inaction.
5.The trial court after hearing both sides found inter alia that there was unexplained delay of around 6 months between when a judgement notice was served on the appellants and the time they moved the court to set aside the exparte judgement. The trial court also found that the draft defence did not raise any triable issue adding that the appellant’s insurers should compensate the victim as the motor vehicle that caused the accident was fully insured.
6.The appellants felt dissatisfied with the trial court’s ruling and filed this appeal raising the following grounds namely: -i.That the learned magistrate erred in failing to set aside ex parte judgement and took into account irrelevant factors arriving at the wrong conclusion.ii.That the trial magistrate erred by trying to conduct a trial on the basis of affidavits filed and resolving the issues summarily without a full trial.iii.That the learned trial magistrate erred to find that the appellants were served properly with summons and plaint despite evidence to the contrary.iv.That the trial magistrate erred by holding that the delay of 6 months was inordinate without considering the Covid-19 situation that restricted free movement at the material time.v.That the learned trial magistrate failed to internalize the spirit of sections 1A, 1B and 3A of the Civil Procedure Act and article 159 of the Constitution of Kenya.vi.That the trial magistrate erred by not finding that the respondents would suffer no prejudice if the case was re-opened.vii.That the learned trial magistrate erred by holding that the appellant would suffer no prejudice because their motor vehicle was insured without considering that the amount awarded was substantial in light of the provisions of section 5(b) of the Third Party (Motor vehicle) Insurance Act Cap 405 Laws of Kenya.viii.That the learned magistrate erred by holding that the supporting affidavit sworn by Kelvin Ngure was of evidential value.ix.That the learned trial magistrate failed to analyze well and synthesis the evidence and arrived at the wrong conclusion.x.That the trial magistrate erred by awarding costs.
7.In their written submissions the appellants contend that they were never served with summons and the plaint and fault the trial court for not addressing issue properly. They claim they were condemned unheard and have relied on the decision of James Kanyiita Nderitu & Anoter versus Marios Philotas Ghika & Another  eKLR in urging this court to give them a chance to be heard as a fundamental right that permeates the justice systems.
8.They fault the trial court for trying to conduct a hearing of the defendant’s case on the basis of affidavits and summarily dismissing them.
9.The appellant contend that they had denied that Wycliff John Syengo was a passenger in the ill-fated motor vehicle and that, that was a triable issue that required interrogations. They fault the trial magistrate for concluding that the draft defence was a sham and have relied on the decision of Jebro (K) Ltd versus Poly Pipes Ltd & Anor eKLR.
10.They further fault the trial magistrate for ignoring the draft defence and instead putting weight on the replying affidavit to make a finding on if there were triable issues disclosed.
11.They further fault the trial magistrate for not considering the Covid-19 situation that at the time restricted movements which delayed them from lodging the application to set aside exparte judgement on time. They rely on James Kanyiita Nderitu & Anor versus Marios Philotas Ghika & Anor  eKLR.
12.The appellant insist that the respondents would not have suffered any prejudice if the ex-parte judgement was set aside.
13.The respondents on the other hand have opposed this appeal and have insisted that the appellants were properly served with summons. They claim that the service was regular and the appellants cannot complain of non-service. They rely on Fidelity Commercial Bank Ltd versus Owen Amos Ndungu & Anor (Nairobi HCCC C No 342 of 1998).
14.The respondents support the trial court’s finding that there were no triable issues revealed and there was no need to set aside the ex parte judgement. They rely on Patel v East Africa Cargo Services Ltd  EA.
15.They claim that courts had resumed operations after Covid by June, 2020 and that advocates were allowed to move from one place to another as they provided essential services.
16.They claim that they would suffer prejudice if the case was re-opened because of delays.
17.They insist that the insurers can pay Kshs 3 million if they so wish and that the limit does not stop courts from awarding more if it is justified.
18.They submit that Kelvin Ngure was a stranger to the proceedings and could not swear an affidavit in support.
19.They have further faulted the appellants for not seeking leave to lodge this appeal and have urged this court to find that there is no competent appeal before it and have cited the provisions of order 43 rule 3 of Civil Procedure Rules. They rely on Stephen Nyasani Menge versus Rispah Onsare eKLR.
20.This court has considered this appeal and the grounds advanced. I have also considered the response made.
21.I will begin with the 1st issue in this appeal which is the competency of this appeal. The respondents contend that this appeal is incompetent because in their view the appellants needed leave under the provisions of order 43 rule 3 of the Civil Procedure Rules.
22.The provisions of order 43 rule 1(g) of the Civil Procedure Rules however provide that the appellants had a right of appeal from the ruling of the Hon Magistrate because the application was in respect to setting aside a judgement entered in default of appearance and defence. The appellants needed no leave to appeal and this court finds that the appeal is proper and competent.
23.The other issues raised in this appeal are: -ii.Whether there was proper serviceiii.Whether the draft defence reveal triable issues.(ii)Whether Service of the summons and plaint was properThe trial court found that the appellants were not honest in stating that they were served yet at the same time blame their advocates for failure to enter appearance and defend them. While it is true that the appellant did not come out clearly on whether the firm of Kairu & McCourt was to file memorandum of appearance and defence or an application to set aside ex parte judgement, I find that the issue of service was not clearly interrogated. There was need to call the process server to shade light on the question of service and be subjected to cross-examination of his affidavit of service to put that question to rest.
24.This court finds that the question of service was not properly addressed yet the same goes into the fundamental issue of the right to be heard. Courts should always guard that right zealously because it is an inalienable right under article 25(2) of the Constitution of Kenya and is connected to right to access justice under article 48 of the Constitution of Kenya. That right cannot be treated in a casual way and that is the basis upon which I have found that the process server should have been summoned to clarify the issue of service the ascertain that the appellants were properly served pursuant to the provisions of order 5 rule 16 of Civil Procedure Rule.
25.I have perused through the affidavit of service by one Sammy M Mutwanya sworn on June 13, 2019 and the process server avers that he was able to get mobile number of both the appellants and gives the mobile numbers of both the appellants and gave the mobile numbers which he averred belonged to them. If that was the case the question posed is, why did he not serve the 1st appellant vide SMS message or even through WhatsApp’s forum and demonstrate service instead of stating that he served the 2nd appellant on behalf of the 1st appellant? In my view unless the trial court was certain that the 1st appellant had authorized the 2nd appellant to receive summons on his behalf or alternatively it was established that the 2nd appellant was an agent of the 1st appellant, the service of summons even if it was effected on 2nd appellant was irregular because order 5 rule 7 of Civil Procedure Rules requires that each defendant ( where ther are several defendants), must be served personally. In this age and era, service through mobile phone enabled messaging applications, email or any other electronic service is good service so long as there is proper evidence of service through prove that the message was duly delivered. This is clearly captured by the recent amendment under order 5 rule 22 B of the Civil Procedure Rules and the decision in Omar Shallo versus Jubilee Party of Kenya & Another  eKLR.
26.The trial court failed to direct its mind to the above when determining the question of service and in the process fell into error. There was insufficient evidence of proper service on both appellants as I have noted above and uncertainty on service can lead to miscarriage of service. That is why a court should proceed with caution when determining the question of service.
27.The trial court faulted the appellants for filing the subject application to set aside the ex parte judgement late it found that period the appellant was notified of the judgement on May 29, 2020 and that they filed them on October 19, 2020 and found the delay was inordinate.However, this court finds that the reasons given which relates to Covid-19 Pandemic were legitimate given that at around that time that is between May 2020, and October 2020, the corona virus was causing havoc not only in Kenya but the entire world. There were a lot of disruptions and while this court takes judicial notice of the fact that some indolent parties rode on the pandemic to explain away their inaction and indolence, it is in the interest of justice to give such parties the benefit of doubt especially where no prejudice would be caused to the opposite party. This court finds that in view of the circumstances, obtaining at the material time, the 6-month delay was not inordinate and the appellants should not have been penalized or found to be unworthy of the trial court’s discretion on account of such delay.
28.The appellants have also raised an issue in their grounds of appeal which I find legitimate and well founded. This is the fact that in its ruling the trial court seem to have taken into account extraneous matters which is evident in the ruling the subject of this appeal. The trial court in its ruling found that the appellants motor vehicle;‘Was fully insured so there is no prejudice they will suffer if the judgement is not set aside, the plaitiff will suffer more’
29.The issue of whether the appellant’s subject motor vehicle was insured or not was irrelevant and a misdirection by the trial court in determining whether or not the appellants had satisfied that court that they had made a case under order 10 rule 11 of the Civil Procedure Rules. The trial court misdirected itself in that respect and arrived at the wrong conclusion. The issue of insurance cover was not a relevant issue in the application to set aside the exparte judgement. The trial court assumed that since the appellants were insured they stood no prejudice because the Insurance Co ordered pay.
30.I agree with the respondents herein and the trial court that Kelvin Ngure’s affidavit in support of the application to set aside was of no value to the said application because Kelvin Ngure was a stranger to the proceedings and could not swear the affidavit in support owing to the doctrine of subrogation which could only allow him to swear such affidavit competently once he established that the insurance company being the underwriter had made good the payment in compensation to the 3rd party. In the absence of proof of payment, he was a stranger and the affidavit sworn was of no probative value. However, the appellants’ application was also supported by the affidavit of the 1st appellant sworn on October 15, 2020 and this court finds that the 1st appellant brought out all the relevant issues to be considered and the said application was not in effect handicapped by the affidavit of Kelvin Ngure, the legal officer of Directline Assurance Co Ltd.(iii)Whether the draft defence disclosed triable issuesThe appellants have faulted the trial courts’ finding that there was no triable issue revealed. I have perused through the ruling and I find that the trial court in determining this crucial issue, it misdirected itself by finding that the respondent had pleaded that the deceased was a passenger and proceeded to find that the fact was uncontested and being uncontested, there was no way the deceased being a passenger could be blamed for the accident. That was a misdirection because a cursory look at the draft defence shows that the appellant contested that fact and denied that the deceased was a passenger in ill-fated motor vehicle.
31.The denial by the appellant could have not been termed mere denials without the benefit of trial where evidence tendered would have been interrogated.
32.It was also erroneous for the trial court to consider the documents that were proposed to be relied by the appellants and dismissed them in a summary manner without considering the what was pleaded in the draft defence.
33.It is also important to note that where the amount awarded is huge like it was in this instance, it is imperative for a trial court to ensure that the opposite party is not denied a chance to challenge those figures even where liability is not seriously contested. A defendant has a right to be heard even on the sole issue of quantum.In the premises, this court finds merit in this appeal, the dismissal order of the court dated April 15, 2020 is set aside and in its place, the application dated October 15, 2020 is allowed in terms of prayer 4 thereof. The appellants are granted 7 days from today to file and serve their defence; Thereafter, the case shall be mentioned before another magistrate with competent jurisdiction for pre-trial and further orders as deem fit. The costs of this appeal shall be in the cause of that suit.
DATED, SIGNED AND DELIVERED AT KITUI THIS 14TH DAY OF NOVEMBER, 2022.HON JUSTICE RK LIMOJUDGE