BENJAMIN KEMOI SAMIKWA V KENYA COMMERCIAL BANK LIMITED [2012] KEHC 870 (KLR)

REPUBLIC OF KENYA

High Court at Eldoret

Civil Case 203 of 2011 [if gte mso 9]><![endif][if gte mso 9]><xml>

Normal 0

false false false

EN-GB X-NONE X-NONE

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]

BENJAMIN KEMOI SAMIKWA::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK LIMITED::::::::::::::::::::::::::::::::::::DEFENDANT

RULING

I have before me an application by the defendant seeking one main order that interlocutory judgment entered against it in default of defence, be set aside and it be permitted to file its defence as per the draft defence annexed to the supporting affidavit.   The application is by a Notice of Motion expressed to be brought under the provisions of Section 3A of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules.   The application is predicted upon two grounds, namely, that there was no proper service of the summons to enter appearance and that the defendant has a good defence to the plaintiff's claim.

The defendant has supported its application by an affidavit of one Isaac Kibere, its Legal Manager sworn on 23rd July, 2012.   It is deponed in the said affidavit, inter alia, that service of the said summons was effected on 30th November, 2012 upon a secretary at the defendant's Human Resource Department which department does not handle litigation for the defendant which event caused delay in the summons getting to the defendant's litigation department; that in any even the secretary who was served was not a principal officer of the defendant and the defendant's defence discloses bona fide triable issues which the defendant should be allowed to ventilate at a trial.   Counsel relied on four cases cited in Odunga's Digest on Civil Case Law and Practice and urged that her client be given a chance to defend the suit.

In opposition to the application the plaintiff swore replying affidavit on 10th august, 2012.   He deponed, inter alia, that the defendant was duly served with summons to enter appearance and delayed in moving the court to set aside the default judgment. He further averred that the proposed defence does not raise any bona fide triable issues and the application it seeks to support is an after thought.

When the application came up for hearing on 24th October, 2012, however, neither the plaintiff nor his counsel attended to oppose the application.   As the hearing date had been taken in court in the presence of the plaintiffs counsel, I ordered that the hearing proceeds counsel's absence notwithstanding.

Counsel for the defendant then presented her client's application exparte.   She reiterated her client's stand-points taken in its supporting affidavit and urged that the application be allowed as prayed.

I have considered the application, the affidavits filed, the annextures thereto, the submissions of counsel for the defendant and the authorities relied upon. Having done so, I take the following view of the matter.   The principles applicable and which I should consider in this application are well settled.   The discretion exercised by the court under order 10 Rule 11 of the Civil Procedure Rules is unfettered. The court may, at its discretion, set aside or vary a default judgment or decree at any time upon such terms as are just.   The exercise of the discretion is however not arbitrary or on whim or caprice.

In this case, the defendant has deponed that service upon it was improper as the same was not upon one of its principal officers.   I think that averment cannot be seriously contested by the plaintiff. All the process server says, in his affidavit of service, is that he served a secretary of the defendant called Esther.   He does not suggest that Esther was one of the principal officers of the defendant.    Prima facie,therefore the defendants averment would appear to represent the correct position of what indeed happened i.e. that none of its principal officers was served with the summons to enter appearance as required under Order 5 Rule 3 of the Civil Procedure Rules. Even if service had been proper, the defendant has demonstrated to my satisfaction that its proposed defence raises triable issues which include allegations of the suit having been filed out of time and that the plaintiff's services were in any event lawfully terminated.

The defendant has also, in my view, satisfactorily explained the delay in lodging this application. In Sebei District Administration -Vs- Gaysyali (1968) E.A. 300, Sheridan J. stated as follows:-

“The nature of the action should be considered the defence, if one has been brought to the notice of the court, however irregularly, should be considered; the question as to whether the plaintiff can reasonably be compensated by  costs for any delay occasioned should be considered and finally I think, it should always be remembered that to deny the subject a hearing should be the lastresort of a court.”

In the premises, even if service of the summons to enter appearance was proper, the court would still have a discretion to set aside the default judgment if it is just to do so.

In the end, I have come to the conclusion that the default judgment be set aside.   After all formal proof was still to be held. The defendant's application dated 23rd July, 2012 is allowed in terms of prayer 3 thereof.    The annexed draft defence is deemed duly filed with the leave of the court on payment of the requisite court fees.

Costs of this application shall be the cause.

It is so ordered.

DATED AND DELIVERED AT ELDORET

THIS 14TH DAY OF NOVEMBER, 2012.

F. AZANGALALA

JUDGE

Read in the absence of the parties and their advocates, the datehaving been given in court.

F. AZANGALALA

JUDGE

14TH NOVEMBER, 2012