Titus Ng’ang’a Kamuyu v Joseph Gitagia Mutheki & Mutheki Muchonjoru [2019] KEELC 2425 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

CASE No.  44 OF 2014

TITUS NG’ANG’A KAMUYU............................................................................PLAINTIFF

VERSUS

JOSEPH GITAGIA MUTHEKI ..............................................................1ST DEFENDANT

MUTHEKI MUCHONJORU...................................................................2ND DEFENDANT

RULING

1.  By Notice of Motion dated 7th September 2018, the 1st defendant seeks the following orders:

1.  Spent.

2.  That in the first instance and for purposes of canvasing the prayer for stay of execution of the decree herein, the law firm of Githui & Co. Advocates be granted leave to come on record after judgment.

3.  Spent.

4.  That the decree issued by this court issued on 8th June 2018 be set aside and the 1st defendant be allowed to file his defence and other pleadings to challenge the suit against him.

5.  That costs of this application to abide the outcome of the suit.

2. The application is supported by an affidavit sworn by the 1st defendant and is opposed through a replying affidavit sworn by the plaintiff.

3. The applicant states that although an appearance was filed on his behalf by an advocate in this matter, he never instructed any advocate to act for him. That he attended court on 10th November 2017 and was given a chance to liaise with his advocates so as to enable him fully participate in the matter. That he was unable to locate the advocates by the time the matter next came up on 29th November 2017 for mention to take date of judgment. That judgment was ultimately delivered on 3rd May 2018. He pleads that he be given a chance to be heard and that he has a good defence to the suit.

4.  The plaintiff stated in the replying affidavit that the applicant has had advocates on record and that he even swore a replying affidavit in this matter on 17th March 1992. That the applicant had ample time to take any necessary steps between the time he attended court on 10th November 2017 and the date of delivery of judgment on 3rd May 2018. That any defence that the applicant may wish to advance was fully determined in Nakuru HCCC No. 265 of 1989.

5.   Parties also filed and exchanged written submissions. I have carefully considered the application, the affidavits filed and the submissions. The applicant seeks setting aside of the judgment herein. When dealing with such an application, the court is called upon to exercise discretion pursuant to the principles laid down in Mbogoh & Another v. Shah [1968] EA 93 which were more recently reiterated as follows in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR:

From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173.

6. The applicant herein has not denied service of Summons to Enter Appearance. He had advocates on record: Ochieng-Odhiambo & Co. Advocates who filed a Memorandum of Appearance on 18th February 1992. He even filed a replying affidavit on 20th March 1992, drawn by the said advocates.  It is thus disingenuous for the applicant to state that he has no advocates on record. A party seeking exercise of the court’s discretion needs to make a full and frank disclosure. The applicant has clearly failed that test. It has been stated time and again that the court’s exercise of discretion is not designed to assist a party who has deliberately sought to delay the course of justice. The applicant is one such party.

7. When the applicant attended court on 10th November 2017, he knew that the matter was on the verge of judgment. The court gave him a chance to take any necessary steps to protect his interests. He could have liaised with his advocates on record or he could have changed advocates. He could even have taken charge and represented himself. When the matter was mentioned again about three weeks later on 29th November 2017, he had done nothing to secure his interest. Judgment was reserved for 4th May 2018 in his presence. Upon judgment being delivered, it took him over 4 months to file the present application. No explanation has been offered for the delay in taking any necessary steps to protect his interests prior to date of judgment being set or in filing the present application. I consider the delay to be unreasonable in the circumstances.

8. In view of the foregoing discussion, I am not persuaded that Notice of Motion dated 7th September 2018 has any merit. I dismiss it with costs to the plaintiff.

9. Ruling herein was to be delivered on 27th February 2019 but was delayed since I proceeded on medical leave. The delay is regretted.

Dated, signed and delivered in open court at Nakuru this 15th day of July 2019.

D. O. OHUNGO

JUDGE

In the presence of:

Ms Wambui for the plaintiff/respondent

No appearance for the 1st defendant/applicant

No appearance for the 2nd defendant

Court Assistants: Beatrice & Lotkomoi