Submissions in this appeal
6.The parties canvassed the appeal by way of written submissions. The appellant submitted that the claim was a liquidated one but that the trial court failed to subject it to formal proof. The appellant relied on the definition of liquidated and unliquidated claims in the case of Mawji v Kaderdina Majee Essak Ltd (1992) eKLR.
7.The appellant submitted that they were not issued with a notice of entry of judgment before execution as required by Order 22 rule 6 of the Civil Procedure Rules, 2010 and no such notice was produced.
8.The appellant further submitted that the trial court misapprehended the applicable principles for setting aside or upholding default judgment. It was submitted that this court has wide discretion to set aside interlocutory judgment and that there are no limits or restrictions on that discretion as long as it is exercised on such terms as may be just. In this regard the appellant cited the decision in Times U Savings and Credit Co-operative Society Limited v Njuki 2022 eKLR. They also cited the decision in the case of Mbogo & Another vs Shah (1968) 1 EA 93, where the Court stated;
9.It was submitted that the Appellant`s defence raised triable issues contrary to the finding by the trial court. The appellant cited the case of Mureithi Charles v Jacob Atina 2022 eKLR where Odunga J (as he then was) held that:
10.The respondent on the other hand submitted that the claim was partly liquidated and partly unliquidated. That the judgment entered was a regular one as the appellant had been served and failed to enter a defence as required by the law. That reasons for the delay had to be given and timelines complied with irrespective of the nature of the proceedings before the court.
Analysis and Determination
11.This being a first appeal, this court is obliged to re-assess, re-evaluate and re-examine the evidence adduced before the trial court and arrive at its own independent conclusion bearing in mind the fact that it neither heard nor saw the witnesses as they testified and therefore giving an allowance to that- see Selle & Another vs. Associated Motor Boat Co. Ltd & Others  EA 123.
12.I have considered the pleadings and the evidence adduced before the trial court and the submissions in this appeal. The main issue for determination is whether the Applicant has made out a case for setting aside of the ex-parte interlocutory judgement and conversely whether the trial magistrate erred in law and fact in dismissing the Appellant’s application dated 19/12/2014.
13.This court has unfettered power under Order 10 Rule 11 of the Civil Procedure Rules,2010 to set aside a default judgment. The Order provides that:
14.In addition, Article 159(2) of the Constitution requires courts of law to dispense justice without having undue regard to procedural technicalities. In Abdirahaman Abdi v Safi Petroleum Products Ltd. & 6 others  eKLR, the Court of Appeal while discussing the input of article 159 of the Constitution in dispute resolution held as follows:-
15.Similarly, in Nicholas Salat v IEBC & 6 others, CA (Application) No 228 of 2013, the Court of Appeal further held that;-
16.It is clear from the aforesaid that the court has power to set aside the interlocutory judgment and allow a party to file a defence. However, such leave is not to be granted as a matter of course. The court must satisfy itself that there is a good explanation that has been offered to set aside such judgment and upon such terms that it would deem fit in the circumstances for the reason that such action would definitely be taking a Plaintiff back in time causing delay in the conclusion of her case especially where a judgment has been given.
17.In the case of Mohamed & Another -v- Shoka (1990) KLR 463 the court set out the principles that a court should consider in setting aside interlocutory judgment to include:
18.The court is required to interrogate whether the impugned judgment is a regular one or an irregular one. A distinction has to be made between the two as observed in the case of Fidelity Commercial Bank Ltd v Owen Amos Ndungu & Another, HCC No.241 of 1998 (UR) …………as cited in……….where the court stated as follows:
19.In this matter the exparte judgment was a regular one as service was not contested. The question is whether the Appellant had given reasonable explanation for the delay in filing a defence.
20.The Appellant in the supporting affidavit sworn by its legal officer, Penina Kinyua, deposed that the failure to file a defence was due to the fact that their advocate repeatedly attempted to file the defence prior to 4/12/2014 but the court file could not be traced at the registry. That the failure was not intentional and thus the Defendant should not be punished for the same. That unless the court allowed the application, the judgement entered and decree issued wound cause great injustice, prejudice and hardship to the Defendant as it would be denied an opportunity to access the court, a right that is enshrined in the Constitution.
21.In my view, the reasons advanced by the Appellant for failure to file the defence were not convincing. The Appellant did not produce any document written to the court to show that the court file was actually missing and that they were following up the matter. Neither did they obtain any letter from the lower court to confirm that the court file was missing. It was thus not enough for the Appellant to just allege that the court file was missing without any evidence to support it.
22.That notwithstanding, the trial court was required to consider whether the draft defence of the Appellant raised a triable issue. The trial magistrate in this case considered the draft defence and concluded that it did not raise triable issues.
23.The Court of Appeal in the case of Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR defined a triable issue as follows:
24.The Appellant in its defence stated that the respondent was not entitled to full compensation of the motor vehicle as he had not made full payment of the premium. The Appellant further denied that there was loss of user. In my view these were matters that required further interrogation by the court and they were therefore triable issues. The trial magistrate erred in holding that the draft defence did not raise triable issues.
25.The trial court was further required to consider whether the respondent would suffer any prejudice if the matter was to be heard on merit. The court did not consider this aspect of the case. I find that the respondent did not show that the delay in filing the defence will have any adverse effect on the just determination of the case. I am therefore of the considered view that justice could still be done in the case despite the delay by the Appellant in filing the defence.
26.It is trite law that no party should be penalized just because there was a blunder committed by his or her advocate. In the case of Republic v Speaker Nairobi City County Assembly & another Ex Parte  eKLR, it was held that blunders will continue being made and that just because a mistake had been made, it does not mean that a party should not have his case heard on merit.
27.Though the reason for the delay in this matter was not convincing, it is my considered view that this court should exercise its discretion so as to allow the Appellant`s suit to be heard on merit. The Appellant has shown its intentions to be heard and it is my view that it would not be in the interests of justice to deny them an opportunity to be heard. The prejudice that the Respondent would suffer for the delay in the conclusion of his case by having it heard on merit can be compensated by way of costs. The question on whether the claim of Kshs.986,000/= amounted to liquidated or unliquidated damages can be dealt with during trial
28.In the premises, I find that the appeal is merited. The ruling of the trial court dated dated 16/3/2015 is hereby set aside and the application by the Appellant/ Defendant dated 19th December 2014 is allowed as prayed therein. The case is thereby reinstated for hearing. I order that it be heard by a different magistrate.
29.Each party to bear its own costs to the appeal.