Daniel Kukuu v Jackson Parkitok [2018] KEHC 4628 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CIVIL APPEAL NO. 25 OF 2017

DANIEL KUKUU.......................................APPELLANT

VERSUS

JACKSON PARKITOK..........................RESPONDENT

[Being an appeal from the ruling and decree dated 16th May, 2017 of the Senior Resident Magistrate’s Court at Kilgoris in Civil Suit No. 52 of 2016, Jackson Parkitok  v. Daniel Kukuu)

JUDGEMENT

1. The appellant has appealed against the ruling and decree in which he was ordered to pay damages in the sum of two hundred and sixteen thousand shillings (Kshs.216,000) together with costs and interest to the respondent. In this court he has raised seven grounds of appeal in regard to which his advocate Mr. Morintat filed written submissions in support of that appeal.

2. The respondent has opposed the appeal and his counsel Mr. Abobo has filed written submissions in opposition to the appeal.

3. The appeal arises out of an ex partejudgement that was entered against the appellant following his failure to file a defence to the respondent’s plaint in the trial court. As a result the respondent gave evidence in the course of formal proof proceedings. In his evidence the respondent produced a report of the agricultural officer. The report found that the damage to the respondent’s four acres of maize by the appellant’s herd of cattle was in the sum of Kshs.216,000.

4. As I have already indicated the appellant has raised seven grounds in his memorandum of appeal in this court. Grounds five and six are the most important grounds in that memorandum of appeal. In ground five the appellant has faulted the trial court both in law and fact in holding that the application for the setting aside of ex parte judgement was made belatedly. I have considered the ruling which gave rise to the ex parte decree. I have also considered the draft defence of the appellant.

5. I find from the draft defence of the appellant that it raises triable issues in paragraphs 3 and 5. In paragraph 3 the appellant averred that there was no place called Olesentu within Shaukwe Ward, wherein it was alleged that the maize was damaged. Whether or not there was such a place is a disputed fact, whose resolution lies in taking oral evidence from both parties.

6. The appellant’s averment in paragraph 5 that: “Police officers at Kilgoris Police Station did not prefer any charges because there was no iota of truth on the plaintiff’s allegations.”,is contentious. This averment must be considered together with paragraph 3, supra. Once this is done, it becomes clear that the appellant factually denied the allegation that the maize was damaged. If that was the position, the appellant would have been charged with malicious damage to property (the maize) and criminal trespass.

7. It is for this reason that a litigant whose pleadings are not crystal clear should not be driven from the seat of judgement due to poorly drafted pleadings. I bear in mind the principle that the preferment of charges by the police is not solely based on evidence. There are other factors including the public interest. Additionally, they may also make human errors in the process of deciding to prefer charges. As a result I find that the appellant’s ex parte application should have been allowed.

8. I have been considered the authorities cited by counsel and I find that they are persuasive in a number of aspects. It is important to point out that it should be a matter of last resort to condemn a party without being given the opportunity to defend himself. In this regard I find Shah and Mbogo [1976] EA 116 at page 123very instructive, in which that court stated as follows in matters of setting aside ex parte judgements: “The discretion to set aside an ex parte judgement is intended to be exercised to avoid hardship or injustice resulting from the accident, inadvertence or excusable mistake or error, but it is not designed to assist a person who was deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”

9. The upshot of the foregoing is that the appellant’s appeal succeeds in respect of grounds five and six with the result that I find it unnecessary to consider the other grounds. However, the appellant is hereby ordered to deposit security in the sum of Eighty thousand shillings (Kshs.80,000) as a condition which must be fulfilled within 45 days, failing which execution will issue and proceed.

10. Trial on the merits to proceed in the trial court, on condition that the appellant deposits the required security aforesaid.

11. In the circumstances of this appeal the respondent will have the costs of this appeal.

Judgement delivered in open court at Narok this 30th day of July, 2018 in the presence of Ms. Saika holding brief for Ms. Maritim for appellant and Mr. Morintat for respondent.

J. M. BWONWONGA

JUDGE

30/7/2018