1.Before me for determination is the Applicants notice of motion dated February 14, 2022, filed under certificate of urgency pursuant to Article 50 & 159 of the Constitution, Order 22 Rule 6 & 22, Order 12 Rule 7 , Order 51 Rule 1, Order 45 Rule 1, Order 7 Rule 1, Order 10 Rule 11 of the Civil Procedure Rules, Sections 1A, 1B, 3A, &63(e) of the Civil Procedure Act and all enabling provisions of law seeking for the following Orders;a)Spent.b)That there be stay of execution and or further execution proceedings and or further proceedings herein pending the hearing and determination of the the application interpartes.c)That the Honourable Court be pleased to lift and or suspend the warrant of arrest and or Order to commit the Applicant herein to civil jail for a period of not less than six months pending interpartes of this Application.d)That this Honourable Court be pleased to Review, vary and or vacate the Orders by setting aside and or staying orders issued on the January 31, 2023, decree(s) issued on March 25, 2021, ex parte proceedings, the judgement entered and or endorsed on March 16, 2021 in these matters in favour of the claimant/ Respondents against the Respondent/Applicant and subsequent proceedings, execution and Orders.e)That this Honourable Court be pleased to grant the Applicant leave herein to file its Defence and defend the claim albeit out of time as per draft response/ Defence annexed to this Application that raise cogent triable issues.f)That the costs of this Application be provided for.
2.The application is supported by the grounds on the face of it and the supporting affidavit of, Ali Jama Ali, the 2nd Applicant and the director of the 1st Applicant deposed upon on the February 14, 2023.
3.The affiant stated that the judgement entered in default of appearance was irregular having been obtained when the pleadings and summons to Enter Appearance were not served on the Respondent/ Applicants herein and any service effected, if at all, was flawed having been done outside the direction provided in the rules. On that basis, they sought to cross examine the process server that effected the said service.
4.He stated that no notice of Entry of Judgement was served on him or the 1st Applicant, before execution proceedings were commenced.
5.He stated that he became aware of the Orders of the Court on being served with Orders on the January 31, 2023, upon receiving service Via WhatsApp / Email.
6.It is the Applicant’s contention that unless the Orders sought are issued, they stand to suffer loss that cannot be compensated by monetary terms. Further that their application will be rendered nugatory if the Orders sought are not granted.
7.The affiant stated further that the Orders for Committal to Civil Jail are likely to be executed when he was not served personally, as per the Rules, with the said Notice to show cause to enable him defend himself and show cause why committal orders should not issue.
8.The Applicant stated that the Respondents have obtained orders unfairly by withholding material facts to secure the Orders in these causes in their favour. Further that they approached this Court with unclean hands.
9.He urged this Court to allow him and the 1st Applicant defend this claim and shed more light on the claim before Court. He added that the Respondents will not be prejudiced in any way.
10.In response to the Application, the Respondents filed a joint replying affidavit deposed upon by Issa Hassan Hamisi, the claimant in the Cause 84 of 2016(The lead file herein), deposed upon on the February 28, 2023.
11.In the the affidavit, the affiant stated that the Applicants were served through substituted service in the standard Newspaper as ordered by this Court on the July 4, 2018 and thus service was effected as provided for under the law.
12.Subsequently, that since there was no appearance, the matter proceeded for hearing on account of non-attendance. He stated further that the Applicant was eventually served with an application of September 20, 2022 on the September 25, 2022 by their official email, which they failed to respond but appeared in Court, through a representative and sought for time to respond but failed to make any response to date.
13.The affiant stated that when the application of September 20, 2022 was scheduled for hearing, the Applicant was represented by an Advocate who sought for time to respond to the application however on December 6, 2022, no response had been filed and the Advocate together with the Applicant were not in Court prompting the Court to make the Orders against them which were issued on the January 31, 2023 which are the subject of this Application.
14.The affiant stated that no Notice to show cause was extracted or served upon the 2nd Applicant, neither did they issue any warrants of arrest against him to warrant the prayers for lifting of the said warrants.
15.On the defence attached to the application, the deponent stated that the defence is full of denials and a sham that cannot stand the test of time because the allegation that there is no employment relationship between the parties is thwarted by the NHIF statement produced in Court. Also that the idea of introducing the director of the 1st Respondent as a 2nd Respondent when he is the sole director of the 1st Applicant is meant to confuse the Court further instead of bringing the clarity required in the claim.
16.The Respondent avers that in the event that the Court is inclined to allow the Application and re-open this case then, make an Orders for the deposit of the entire decretal sum and costs of Kshs 1,378,200 to ensure compliance by the Applicant considering that they have not indicated their physical place of abode.
17.The Application herein proceeded by written submissions.
18.The Applicants submitted on two issues; whether there was proper service of Court documents appertaining this case and whether the defence annexed herein contains valid and reasonable defence.
19.On the first issue, it was submitted that alleged service was effected on a wrong address of service when the Claimants ought to have known the physical address of their employer and effect personal service of the Court pleadings and Summons to Enter Appearance.
20.The applicant submitted that the basis upon which the Claimants were allowed to serve them by registered post is unknown as the record does not indicate any attempts made by the Respondents in effecting personal service on the Applicant and the failure to serve thereof. On that basis, the Applicants submitted that the Respondents herein mislead the Court into receiving orders in their favour to serve them by substituted service.
21.The Applicant denied instructing any advocate to act for them prior to 2023 and argued that the allegation that an advocate appeared for them on the application of September 20, 2022 is meant to mislead the Court and they reiterated that they became aware of this Suit when they were served with the Orders dated January 31, 2023. He argued further that since the email indicated in the pleadings and the postal address is wrong, the pleadings in this suit were never served upon them and urged this Court to find as such and hold that service was not properly effected on them and set aside the the default judgement. To support this argument, the Applicant relied on the case of Patel Vs EA Cargo Handling Services Ltd EA 75 where the Court held that;
23.Accordingly, he submitted that the discretion of a court to set aside or vary ex-parte judgement is a free one. The discretion is intended to be exercised to avoid injustice or hardship, but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice.
24.On the annexed drafted defence, the applicant submitted that for ex parte judgement to be set aside, a judge must consider among other things the nature of defence, the period of delay and any prejudice that will be visited on the claimant and the overriding objectives. On that note it submitted that the main issue raised in the defence is with regard to forged expired employment contract which issue is substantial and need to be determined in defence hearing. To support their argument, they relied on the case of Philip Keptoo Chemwolo & Mumias Sugar Company Ltd v Augustine Kubende [1982-1988] KAR where the Court held that;-
25.The Applicant submitted that one of the conditions to be considered by the court in setting aside judgement is whether there is a draft defence on record. In this he relied on the case of Sebei District Administration V Gasyali and others  EA 300 where the Court held that;
26.Accordingly, it was submitted that even when an ex parte judgement is entered into regularly, the Court should still consider the draft defence and see if it contains triable issues. On that note, the Applicant urged this Court to consider its defence and allow the Application.
27.The Respondents submitted on five issues; whether the service was by registered post of substituted service, whether leave was granted to serve by substituted service, whether the Applicant has provided any physical contract address that would enable their personal service, whether the Applicant was represented in Court as alluded to under paragraph 7 of the Replying affidavit and whether the Applicant raises any triable issue that warrant the setting aside of the judgement.
28.The Respondents herein submitted that contrary to the allegations by the Applicants that the service of pleadings and Summons to enter Appearance was effected by registered post, the pleadings in the cases herein were effected by substituted service through the standard newspaper as ordered by the Court. It was argued further that if the means in which the pleadings were served did not reach the Applicants, then they could not have received the information regarding the application seeking to lift the corporate veil, which was served in the same way as the initial leadings.
29.The Respondent also submitted that the Applicant has not provided its physical address either in the Application herein or submissions filed to enable them serve them personally as argued. Therefore, informing their earlier decision of seeking leave to serve them by substituted service.
30.On whether the Applicant has earlier been represented on the Application, the Respondent submitted that an advocate appeared for the Applicants on the October 4, 2022 and sought for time to respond to the Application but failed thereafter. Confirming that indeed the Applicants were aware of the Application and their allegation that they were made aware of the proceedings before Court on execution in 2023 is far from the truth.
31.On the draft defence filed, the Respondents submitted that the same is a sham as it contains mere denials that cannot constitute triable issue for the purposes of starting the suit de novo. It was submitted that the Applicants denied existence of Employment Relationship but the NHIF statement clearly show there was employment relationship. Further that the employment contract produced is signed by Ali Jama Ali, the director of the 1st Applicant herein. Further that even if the allegations that the employment contract was forged was to go by, then the Applicant ought to have tabled evidence of the alleged forgery inform of report to the Police. From the foregoing it was submitted that the defence herein is not valid as was held in the case of Tree Shade Motor Limited V DT Dobie Co Ltd CA 38/98. He added that for a judgment to be set aside the validity of the draft defence need to be put to test as was held in Morris & Company Limited vs Victoria Minerals & Chemicals Limited & Another (2007) eKLR where Justice HPG Waweru held as follows:
32.It was submitted that the discretion of the Court granted at Order 10 Rule 11 is not only limited to setting aside a judgement but also to refusing to set a side such judgement. In support of this argument, the Respondent relied on the case of K v K  Eklr, where the Court held that; -
34.On the need to balance the interest of the partied being the right of the Applicant to be heard and the right of the Respondents to enjoy their fruits of judgement, the Respondent relied on the case of Gabriel Maina v SOS Children’s Villages Kenya  eKLR where the Court opined that ;
35.On that basis, the Respondent submitted that litigation has to come to an end and even if the Court re-opens up the cases herein, it will arrive at the same conclusion. They urged the Court to dismiss the application herein with costs.
36.I have examined all the averments and submissions of the parties herein.
37.The applicants contend that they were never served with the summons to enter appearance in this case and therefore were condemned unheard.
38.The respondents aver that service was indeed effected as ordered by court on 12/4/2018 through substituted service.
39.The respondents exhibited evidence that the applicants were served by adverts in the Standard Newspaper of 4/7/2018.
40.I also note that there were further notices served upon the applicants for mention for further directions on 17/8/2018 and 26/9/2022 but still the respondents never appeared.
41.Judgment was delivered on 16/3/2021. The claimants respondents then filed an application to lift the veil on the directions of the respondents applicants herein.
42.The respondents were served on the 6/12/2022 but failed to appear. The application to lift the veil was then allowed.
43.In view of the applicants chronic absenteeism and failure to attend court and to summons served upon them, their contention that they were never served holds no water.
44.They have always been aware of this claim since 2016 and they exhibited a don’t care attitude.
45.I find the application not merited and I dismiss it accordingly with costs to the respondents.