Mombasa Khushi & Motors Company Ltd v Alex Orora Ombese & Joseph Oeba [2022] KEHC 27062 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

MISCELLANEOUS CIVIL APPLICATION NO. E026 OF 2021

MOMBASA KHUSHI MOTORS COMPANY LTD...........APPLICANT/INTENDED APPELLANT

VERSUS

ALEX ORORA OMBESE..........................................................................................1ST RESPONDENT

JOSEPH OEBA..........................................................................................................2ND RESPONDENT

RULING

1.  The applicant moved the court by way of Notice of Motion dated 3rd June, 2021 under sections 3A & 95 of the Civil Procedure Act, Order42 Rule 6, Order 49 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant  is seeking the following orders:

a)   That service of this application be dispensed with in the first instance in view of its urgency.[Spent]

b)   That this Honourable Court be pleased to stay execution of the judgment entered against the Applicant in Oyugis PMCC No.55 of 2018 and any other consequential orders issued pursuant thereto pending the inter-parties hearing of this application.[Spent]

c)   That this Honourable court be pleased to say execution of the judgment entered against the Applicant in Oyugis PMCC No.55 of 2018 and any other consequential orders issued pursuant thereto pending the hearing and determination of the applicant’s intended appeal.

d)   That this Honourable Court be pleased to allow the applicant to lodge an appeal out of time.

e)   That the costs of this application be provided for.

2.   The application is  premised on the following grounds:

a)   That on 21st September, 2018 the 1st respondent obtained ex-parte judgment against the applicant in the sum of kshs.3, 102,052. 00 plus interest and costs.  The applicant was not served with summons to enter appearance and/or the purported service of summons to enter appearance upon the applicant was not proper.

b)   That by an application before the Oyugis Principal Magistrate’s Court dated January 29, 2021, the applicant sought orders to set aside the ex-parte judgment, which the court dismissed by its ruling delivered on April 28, 2021.

c)   That consequently, the 1st respondent obtained warrants of attachment and proclaimed the Applicants goods on May 31, 2021.

d)   That the applicant is aggrieved by the ruling and is late by less than a week in appealing the ruling delivered on April 28, 2021.  There has been no inordinate delay in appealing the ruling.

e)   That the applicant has an arguable appeal since it has valid grounds of appeal and a defence that raises triable issues:

i)          The Applicant sells motor vehicles including the one which caused allegedly caused injury on the 1st respondent.

ii)         At the time of the purported accident, the applicant had disposed of the vehicle and was not in control of the same.

iii)        The applicant was not served with summons to enter appearance and in the alternative, the purported service of summons upon the applicant was not proper.

f)   That the applicant is ready and willing to abide by the conditions to be set by the Court before granting stay of execution.

g)   That unless the orders sought herein are granted, the intended appeal will be rendered nugatory and the applicant will suffer injury since the decretal amount is so substantial.

h)   That it is in the interests of justice that the prayers sough herein be granted.

3.   The respondent opposed the application on the following grounds:

a)  That the application lacks merit and an abuse of the court process.

b)  That the applicant was served but failed to enter appearance or file defence.

c)That the impugned judgment was entered after hearing the parties.

4.   The applicant herein is seeking orders for enlargement of time to appeal and an order of stay of execution.

5.   In her application, the applicant has contended that service of summons to enter appearance was not effected on them. This was challenged by the 1st respondent in his replying affidavit.  He attached a copy of Notice to enter appearance which was served upon Khadija Hassan Salmin which she acknowledged receipt of on 2nd July, 2018. The applicant chose to keep mum about this averment.

6.  I therefore find that the applicant was served with Summons to enter Appearance but chose not to. If a party chooses not to participate in a matter before court, it would not be in the interest of justice to seek orders of the court in assistance when the reasons advanced are tainted by falsehood.

7.  The upshot of the foregoing is that the application lacks merit and I accordingly dismiss it with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 17TH DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE.