The Appellants Submissions.
14.The Appellants submitted that they were neither served with fresh Summons together with the Amended pleadings nor were they served with the Notice of Entry of Judgment as required by Order 22 of the Civil Procedure Rules. That the Affidavit of Service was false as the dates of the pleadings it referred to were different. It was their further submission that the Affidavit of Service was never dated contrary to Section 5 of the Oaths and Statutory Declarations Act, Cap 15 of the Laws of Kenya.
15.It was the Appellants submission that a Judgment is irregular if a party was not served with Summons. That a court can set aside the irregular Judgment on its own motion. They relied on the cases of James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another (2016) eKLR and Kabutha vs Mucheru (2004) eKLR to support this submission.
16.The Appellants submitted that Hegeons Auctioneers proclaimed and attached the 2nd Appellant’s Motor Vehicle Registration Number KCT 581B based on a Decree, Warrants of Attachment and Proclamation that were never addressed to the 2nd Appellant. That the aforementioned documents were erroneous and the only remedy would have been to rectify the Decree and fresh Warrants issued. They relied on the case of Masinde Muliro University of Science and Technology vs Alfatech Contractors Limited & 2 Others (2021) eKLR.
17.It was the Appellant’s submission that the trial court erred in setting aside the interlocutory Judgment on condition that they pay throw away costs and the Auctioneers fees because of the irregular Judgment and erroneous Decree and Warrants of Attachment.
18.My work as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the Court of Appeal case of Gitobu Imanyara & 2 Others vs Attorney General (2016) eKLR.
19.It is salient to note that this file being Bomet High Court Civil Appeal Number E021 of 2022 is a sister file to Bomet High Court Civil Appeal Number E022 of 2022. The trial court files were also sister files being Bomet CMCC No. E009 of 2020 and Bomet CMCC No. 010 of 2020. The prayers sought in the trial court were similar, the Judgments delivered by the trial court were similar. The only difference are the Respondents. It then follows that the analysis of the facts and the Orders thereafter will be similar.
20.I have read through and carefully considered the Record of Appeal dated 9th June 2022, the Memorandum of Appeal dated 12th May 2019, the Appellant’s Written Submissions dated 22nd July 2022 and the Respondent’s Written Submissions dated 27th July 2022. From my appreciation of the pleadings aforesaid, I find that almost all the issues raised in this appeal have either been overtaken by events, or have been resolved by the trial court or by the parties themselves. My take therefore is for the larger part, this appeal in an academic exercise. The only outstanding issue is whether the trial court exercised discretion judiciously when it ordered the Appellant to pay throw away costs to the Respondent.
21.As earlier noted, the Appellants neither entered appearance nor filed a Defence in the trial court. Interlocutory Judgment was entered against them on 12th August 2021. Formal proof hearing was conducted on 25th October 2021 where the Respondent testified and produced evidence in support of his claim.
22.Judgment in the matter was delivered on 20th December 2021 where the Respondent was awarded Kshs 2,159,822. On 11th March 2022, the trial court noted errors in its Judgment. Pursuant to the provisions of Sections 99 and 100 of the Civil Procedure Rules, it rectified the name of the 2nd Defendant/2nd Appellant and the Motor Vehicle Registration Number as KCT 581B instead of KCD 381B.
23.In the trial court, the Appellants filed a Notice of Motion Application dated 11th March 2022 that sought the following Orders:-I.That the Application be certified as urgent and be heard exparte and service of the same be dispensed with in the first instance.II.That pending the hearing and subsequent determination of this application interparties, this Honourable Court be pleased to make a temporary order for stay of execution and release of Motor Vehicle Registration Number KCT 581B on a running attachment as the same was the Applicant’s tool of trade.III.That consequential to prayer II above, this Honourable Court be pleased to make a declaration that the Attachment of Motor Vehicle Registration Number KCT 581B was unlawful, illegal, unprocedural, null and void ab initio and against the doctrine of lis pendens and proceed to forthwith order the release of the said Motor Vehicle.IV.That the exparte interlocutory Judgment entered against the Defendants/Applicants herein be set aside together with the consequential orders therein and the Defendants/Applicants be given unconditional leave to file Defence out of time and have the annexed defence deemed as duly filed.V.That this Honourable Court do set aside the illegal Execution Proceedings commenced by Hegeons Auctioneers and/or other auctioneers and call for the warrant of sale and warrants of attachment of movable property already issued, with the view of their cancellation.
24.In the Ruling of the aforementioned Application that was delivered on 9th May 2022, the trial court ruled as follows:-I.That a stay of execution of the Decree is hereby confirmed.II.That the Judgment entered herein is hereby set aside together with the consequential orders arising from the said Judgment.III.That the Defendants/Applicants are hereby granted leave to defend the suit and the Motor Vehicle Registration Number KCT 581B herein is set to be released to the Defendants/Applicants but only on conditionthat the Applicants pay the Plaintiff throw away costs of Kshs 20,000/= in addition to the auctioneer’s costs.IV.That the Defendants to file their Defence within 30 days from the date of this Ruling.V.That failure to comply with the set conditions set above herein renders the Judgment entered to revert and the Plaintiff/Respondent be at liberty to proceed with execution.VI.Costs of this Application to be borne by the Defendants/Applicants.
25.The Appellants then moved this court through a Notice of Motion Application dated 12th May 2022 where they sought the following Orders:-I.That this Application be certified as urgent and be heard exparte at the 1st instance.II.That pending the hearing and determination of this Application, this Honourable Court be pleased to grant stay of execution of the Ruling delivered by Hon. L. Kiniale on 09.05.2022 and order for the release of Motor Vehicle Registration Number KCT 581B held by Hegions Auctioneerson a running attachment and/or upon such conditions that the court may deem fit.III.That pending the hearing and determination of the appeal herein, this Honourable Court be pleased to order for stay of execution of the Ruling delivered by Hon. L. Kiniale on 09.05.2022 and all other consequential orders emanating therefrom.IV.That the costs of this Application be provided for.
26.In a Consent dated 5th July 2022, the parties consented to the following terms:-I.That the Applicants to pay Hegeons Auctioneers the sum of Kshs 250,000/= on a without prejudice basis, being the Auctioneer’s total costs arising from Bomet CMCC Numbers E009 and E010 of 2020 and await the outcome and determination of the Appeal therein.II.That if the Applicants Appeal is allowed, the Auctioneer will refund the Applicants the amount paid within 14 days upon demand and in default thereof, the Applicants will be at liberty to recover the paid sum of Kshs 250,000/= as a civil debt through a civil suit.III.That if the Applicants Appeal is dismissed, the Auctioneer will be at liberty to tax his bill of costs and ascertain the true amount he ought to have paid.IV.That Hegeons Auctioneers to unconditionally release the 2nd Applicant’s Motor Vehicle Registration Number KCT 581B upon payment of the sum of Kshs 250,000/= indicated in clause I above.V.That the Record of Appeal is in order.VI.That the Appeal be canvassed by way of written submissions.VII.That Appellants be given 7 days to prepare and file their submissions and the Respondent to equally be given 7 days to prepare and file their submissions.VIII.That the court do issue a mention date when parties will confirm filing of submissions.IXThat the same orders to apply in regards to the Applicant’s Application dated 12/05/2022 in Bomet HCA E021 of 2012.
27.From the pleadings on record, it appears to me that the Appellants were appealing against the Ruling of the trial court delivered on 9th May 2022 while in fact the impugned Ruling was in their favour as it allowed them a chance to file a Defence and ventilate their case.
28.At this juncture, I revisit the grounds of appeal as follows; Grounds 1 and VI related to disputed service. It was the Appellants argument that the court erred in entering judgment against them when they had not been served. Grounds V and VII related to the impugned judgment. As already shown above the trial court in the Ruling dated 9/5/2022 set aside the default judgment and all its consequential orders. The court made a finding that there was proper service and that failure to date the affidavit of service did not render the service null. The court further found the judgement regular. Nonetheless, the court appreciated the need for substantive justice and set aside the default judgment with the consequential orders. The court granted the Defendant/Respondent 30 days to file their defence and further granted an order for stay of execution.
29.What the Appellant now wants this court to do is to make a finding on service as well as whether the judgment was regular or irregular. I consider this an academic exercise because the Appellant’s desire to set aside the judgment was allowed by the trial court whether or not the service was proper and whether the judgment was regular or irregular.
30.The Appellants submitted that they appealed against the Ruling to the extent that the trial court found that they were served with Summons to Enter Appearance, Amended Plaint and the Notice of Entry of Judgment.
31.Section 20 Civil Procedure Act requires that upon the institution of a suit, the defendant should be served in the prescribed manner in order to enter appearance and answer the claim.
32.Order 5 Rule 1(1) provides that:-
33.There is an undated Affidavit of Service on record that was filed on 11th August 2021 sworn by Elijah Gekonge Nyangau. He stated that he received Summons to Enter Appearance, Plaint and Verifying Affidavit and annextures on 28th April 2021 with instructions to serve the same to the Appellants. The Affidavit goes on to state that he served both Appellants on the same day and both declined to sign his service copy.
35.The process server returned unsigned Summons to Enter Appearance dated 28th April 2021. I note that the Amended Plaint and its annextures were all dated 1st April 2021 and not 12th April 2021 as indicated in the Affidavit of Service. I also noted that the Affidavit of Service was properly signed before a Commissioner for Oaths, Mr. Erick Omariba and the only anomaly was the missing date. In my view these are small technical and procedural issues that should not be used to drive a litigant away from the seat of substantive justice. What was important was that the Affidavit clearly showed that the Appellants were personally served. In the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 Others  eKLR the Court of Appeal stated as follows:-
36.Further in the case of Saggu Vs Roadmaster Cycles (U) Ltd (2002) 1 E A. 258, the Court of Appeal of Uganda held that:
37.The Appellants had an opportunity to seek for an order to cross examine the process server in their Application dated 11th March 2022 if they felt that the contents of the Affidavit of Service were false but they did not do so. In the case of Justus Kariuki Mate & Another vs. Martin Nyaga Wambora & Another (2014) eKLR, the Court of Appeal had this to say in regards to Affidavits of Service:(See also Agigreen Consulting Corp Limited Vs National Irrigation Board (2020) eKLR)
38.On the strength of the Affidavit of Service on record and in the absence of any contest from the Appellants, it is my finding that the Appellants were properly served with the Summons to Enter Appearance, the Amended Plaint and it annextures.
39.With respect to failure to serve notice of entry of judgment, the trial court acknowledged the omission and I shall therefore not belabour this point in any event, the net effect of not serving a party with Summons to enter Appearance, the Amended Plaint and Notice of Entry of Judgment would be to have the Interlocutory Judgment set aside. In its impugned Ruling of 9th May 2022, the trial court in exercise of its discretion set aside the Judgment it had entered against the Appellants and other consequential orders and they were further granted leave to file a Defence.
40.To my mind, the outstanding issue that the Appellants had with the impugned Ruling was the issue of the throw away costs. The Appellants contended that the trial court was wrong in ordering them to pay throw away costs. The trial court ordered the release of Motor Vehicle Registration Number KCT 581B on condition that the Appellants pay Kshs 20,000/= as throw away costs.
41.Cost are awarded at the discretion of the court order. Section 27 (1) of the Civil Procedure Act provides that:-Order 1 Rule 23 of the Civil Procedure Rules providesthat:-
42.In the case of Patel Vs East Africa Cargo Handling Services Ltd (1974) EA 75, it was held:
43.The discretion of the trial court is to be exercised judiciously and each case must be looked at separately and decided upon on its own unique facts. As already discussed above, the Appellants did not enter appearance or file a Defence. The Judgment dated 20th December 2021 awarded the Respondent Kshs 2,159,822/= plus costs. The same Judgment was thereafter set aside. I concur with the trial court’s decision to award the throw away costs as that would balance the interests of both parties. (See Kenya Commercial Bank Ltd vs. Sun City Properties Ltd & 5 others (2012) eKLR). (See also the Court of Appeal case of Pithon Waweru Maina vs Thuka Mugiria (1983) eKLR).
44.It is my finding that the trial court did not misdirect itself or misapprehend any facts to entitle this court to interfere with the award of the throw away costs. (See Kenya Power and Lighting Co. Limited vs. Abdulla Mohamed and another (2017) eKLR).
45.The final issue is the Auctioneers costs. The Appellants argue that the trial court awarded costs to the auctioneers without due procedure. I note however that the parties entered a consent in this judgment in which has already been reproduced only in this judgment on the auctioneer’s costs. I shall therefore not belabour the issue. In conclusion it is my considered view that this Appeal was merely an academic exercise.
46.Ground VIII of the Memorandum of appeal as worded does not add value to the Appeal but amounts to a practice to be discouraged as it offends the rules of professional courtesy.
47.In the end, the Appeal dated 12th May, 2022 has no merit. It is dismissed with costs to the Respondent. The trial file is returned to the trial court for the suit to proceed on merits.