Mpaka v Kiumbe & another (Civil Appeal 88 of 2021)  KEHC 15860 (KLR) (30 November 2022) (Judgment)
Neutral citation:  KEHC 15860 (KLR)
Republic of Kenya
Civil Appeal 88 of 2021
EM Muriithi, J
November 30, 2022
Wells Fargo Limited
(Being an appeal from the Ruling of Honourable S. N Abuya (CM) delivered on 14/6/2021 in Meru CMCC No. 29 of 2009)
1.The 1st Respondent herein, the Plaintiff in the trial court, sued the Appellant and the 2nd Respondent by an amended plaint dated 14/9/2010 seeking Special and General damages, costs, interest and any other relief the Court would deem just and fit to grant. When the Appellant and the 2nd Respondent failed to enter appearances and file their respective defences after duly being served with the summons to enter appearance and pleadings, the court on 26/11/2013 entered judgment for the 1st Respondent, and the matter, after being severally adjourned, proceeded for formal proof on 30/11/2016 and 14/12/2017.
2.After the judgment was delivered on 8/2/2018, the Appellant filed an application dated 3/10/2020 seeking to have the judgment entered herein set aside and leave granted to defend the case. The court, in its ruling delivered on 14/12/2020 dismissed the said application for want of prosecution. The Appellant successfully applied for reinstatement of the said application, and after it was heard on its merits, the court, vide its ruling delivered on 14/6/2021 found that the judgment sought to be set aside was regular and proceeded to dismiss the application.
3.Aggrieved by the said dismissal of her application dated 3/10/2020 vide the ruling of 14/6/2021, the Appellant has moved this court through a memorandum of appeal dated 8/7/2021 raising 10 grounds as follows:1.The Learned Chief Magistrate erred in law and fact for holding and for reasons that she held that the appellant was served with summons, plaint and verifying affidavit in Meru CMCC No. 29/2009 whereas the appellant categorically denied being served with aforesaid documents and further there was no enough evidence to prove that the appellant was served with the aforesaid documents.2.The Learned Chief Magistrate erred in law and fact for holding and for reasons that she held that the judgment in Meru CMCC No. 29/2009 was regular whereas there was no service of summons to enter appearance, plaint and verifying affidavit upon the appellant.3.The Learned Chief Magistrate erred in law and fact for holding and for reasons that she held that judgment in Meru CMCC No. 29/2009 was regular whereas there was no finding and/or decision in her said ruling to the effect that the appellant was served with summons to enter appearance, plaint and verifying affidavit in Meru CMCC No. 29/2009.4.The Learned Chief Magistrate erred in law and fact for holding and for reasons that she held that the draft defence lacked merit, did not raise triable issues and that it contained mere denials whereas the draft defence raised triable issues and the appellant had a good defence to the 1st respondent’s claim.5.The Learned Chief Magistrate erred in law and fact in dismissing the appellant’s application dated 3/10/2020 whereas the appellant had offered sufficient cause to warrant the court to set aside judgment which was entered on 8/2/2018 and any consequential decree or order.6.The Learned Chief Magistrate erred in law and fact for failing to exercise her discretion judiciously, thereby dismissing the appellant’s application dated 3/10/2020.7.The Learned Chief Magistrate erred in law and fact for failing to find and for reasons that she failed to find that the 1st respondent would not suffer injustice and/or prejudice if the judgment entered on 8/2/2018 and any consequential decree or order are set aside.8.The Learned Chief Magistrate erred in law and fact for failing to find and for reasons that she failed to find that the appellant would suffer injustice and hardship if the judgment entered on 8/2/2018 and any consequential decree or order are not set aside.9.The Learned Chief Magistrate erred in law and fact for denying the appellant right to be heard by dismissing the appellant’s application dated 3/10/2020.10.The Learned Chief Magistrate erred in law and fact for dismissing the appellant’s application dated 3/10/2020 whereas even after finding that the 1st respondent had not opposed the said application.
4.The appeal was heard by way of written submissions which were filed by the parties on 16/5/2022 and 21/6/2022, respectively. The Appellant reiterated the grounds of appeal and relied on Remco Limited v Ministry Jadva Parbat & Co Ltd & 2 others Nairobi (Milimani) HCCC No. 171 of 2001, Wilson Cheboi Yego v Samuel Kipsang Cheboi (2019) eKLR, Richard Ncharpi Leiyagu v Independent Electoral & Boundaries Commission & 2 Others (2013) eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others (2013) eKLR in support of her submissions.
5.The 1st Respondent urged that the Appellant was subjected to a fair trial and her draft defence raised no triable issues. He faulted the Appellant for failing to offer security for costs or throw away costs as a condition for having the ex parte judgment set aside. He urged that there was an affidavit of service filed in regard to service of summons, and faulted the Appellant for failing to call the process server for cross examination.
Analysis and Determination
6.This being a first appeal, this court is required to consider the evidence adduced, evaluate it and draw its own conclusions bearing in mind that it did not hear and see the witnesses who testified. (See Selle & Another v Associated Motor Boat Company Ltd & Others  EA 123).
7.Grounds 1, 2 and 3 touch on service and the regularity of the judgement of the court while ground 4 touches on the question whether there are triable issues raised in the draft defence and grounds 5, 6, 7, 8, 9 and 10 are on setting aside of the judgment. Therefore, the issues for determination are whether service was proper; whether these is a defence on the merits; and whether the judgment was regular.
8.Order 10 Rule 2 of the Civil Procedure Rules provides that, “Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he shall file an affidavit of service of the summons unless the summons has been served by a process-server appointed by the court.”
9.Order 10 Rule 11 provides for setting aside judgment as follows:
10.According to the affidavit of service sworn by Mercy Kaume Advocate on 28/10/2013, she effected personal service of the summons and pleadings herein upon the Appellant on 6/4/2009 at Mwithumwiru Primary School where she worked as a teacher, and she acknowledged service but declined to sign. On 8/10/2013, the said Mercy Kaume Advocate served the 2nd Respondent with the summons and pleadings herein through registered post receipt No. 2226, and the said documents have never been returned as unclaimed.
11.After the Appellant and the 2nd Respondent neglected to enter appearances and/or file their respective defences within the stipulated time, the 1st Respondent requested for judgment on 19/10/2013 which was entered on 26/11/2013. When the matter came up for formal proof hearing on 26/10/2016, Miss Wainwa who was holding brief for Miss Kaume for the plaintiff told the court that, “The defendants is in person. He cames as for hearing. He is coming to proceed. He seeks matter be placed aside.”
12.Due to some unforeseen reasons, the matter did not proceed for hearing as anticipated but was heard on 30/11/2016 when the 1st Respondent and his witness testified. The court vide its judgment delivered on 8/2/2018 found in favour of the 1st Respondent, held the Appellant and the 2nd Respondent to be 100% liable for the accident and awarded Ksh. 200,200 plus costs and interests at court rates. In its ruling dated 14/6/2021, the trial court dismissed the Appellant’s application for setting aside the said judgment on the basis that service was proper.
13.An irregular judgment, which ought to be set aside ex debito justitiae, must be distinguished from a regular judgment. The distinction between the two was made by the Court of Appeal in James Kanyita Nderitu v Maries Philotas Ghika & Another (2016) eKLR as follows:
14.This court, without any doubt finds that the judgment herein was regular as service was proper.
15.Having found that the service herein was proper and therefore the judgment was regular, the questions whether the same ought to be set aside and whether the Appellant’s defence raised triable issues arise for consideration. The trial court considered these before its Ruling of 14/6/2021 as follows:
16.This being an appeal from the exercise of discretion by the trial court, the principle of Mbogo v. Shah (1968) EA 93 applies as follows:
17.On its part, this court has considered whether there were trial issues, and from the defence herein it is not possible to say that there are no trial issues on the questions as to whether the accident was caused by the negligence of the plaintiff. See paragraph 6 of the Defence dated 3/10/2020 set out as follows:
18.The trial court ought to have given leave to defend in view of the triable issue, and there, consequently, is a misdirection as to presence of a triable issue for which this court is entitled to interfere.
19.The Court notes that the default judgment herein was regular and leave to defend is only given on account of the trial issue set out into the defence as to the causation of the accident and the court shall, therefore, give conditional leave to defend conditional upon deposit of the decretal sum as security.
20.Consequently, for the reasons set out hereinabove, the Court makes the following orders;1.The appeal is allowed.2.The appellant’s defence in the trial court shall proceed to hearing on the merits.3.As condition for the grant of leave to defend, the applicant shall deposit the decretal sum in a joint interest earning account in names of the counsel for the parties within thirty (30) days.4.Cost of the appeal shall be costs in the Cause.Order accordingly.
DATED AND DELIVERED ON THIS 30TH DAY OF NOVEMBER, 2022.EDWARD M. MURIITHIJUDGEAppearancesM/S J. G. Gitonga & Co. Advocates for the Appellant.M/S M. G. Kaume & Co. Advocates for the Respondent.