Valentine Edu Ltd v Mathias Owili Obiero [2019] KEHC 1949 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 112 OF 2017

VALENTINE EDU LTD...............................................................................APPELLANT

AND

MATHIAS OWILI OBIERO ...................................................................RESPONDENT

RULING

1. The Respondent instituted a suit against the Appellant claiming  general and special damages together with interest vide a plaint dated    4th August, 2016 in Mombasa SRMCC No. 1444 of 2016.

2.  The appellant filed a memorandum of appeal to the said suit on the 18th   August, 2016 but filed no defence. There being no defence file, by the  appellant, an interlocutory judgment was entered in favour of the   Respondent on 2nd September, 2016.

3.  A defence was subsequently filed by the Appellant on 4th November, 2016 and on 16th February, 2016, it also filed a notice of motion  application dated 16th February, 2017 seeking to set aside the interlocutory judgment which was entered in favour of the  Appellant   on 2nd September,2016. The application was dismissed on 2nd  September, 2017.

4.  Dissatisfied with the said decision the Respondent lodged the instant appeal and set out the following grounds;

(a) The learned magistrate erred in law and in fact in dismissing  the Appellants’ notice of motion application dated 16th February,  2017, without any cogent reason.

(b) The learned magistrate erred in law and in fact in  failing to evaluate the appellants draft statement of defence and  appreciate that it raises triable issues.

(c) The learned magistrate erred in law and in fact in failing to  apply several decided case laws that were cited and submitted in support of the appellant’s application, thus  this arriving at an   erroneous decision.

5.  The Appeal was admitted for hearing on 19th September, 2018 and on the same date, the parties agreed to dispense with the appeal via written submissions. It is only the appellant’s written submission that are on record having been filed on 154th October, 2018.

APPLELLANT’S SUBMISSIONS

6. The appellants counsel submitted that   he was relying 0n the grounds set fourth in the memorandum of appeal and its written submission.

He submitted that any judgment passed against a defendant in default  of appearance or defence can be set aside whether such judgment is regular or irregular. And the court, should in granting or refusal to  grant the orders of setting aside of such judgment consider whether the defendant has a good and reasonable defence.

7. Lastly, the appellant’s counsel submitted that the trial court failed to exercise its discretion in determining the application and urged this   Honourable court to allow the appeal.

8.  The Respondent did not file any submissions and neither did he  proceed by viva voce evidence.

9.   In an appeal , the role of this court as provided for under section 78 of   the Civil Procedure Act is to excercise the same powers and perform  nearly as may be the same action as are conferred and  imposed on  courts of original jurisdiction in respect of suits instituted therein. In     this appeal, the court, duty, as is expected, is to evaluate the evidence that was adduced at trial, while being careful to note that it did not   have the  benefit of hearing and observing the  witnesses as the lower court   did.

10.  I have read through the memorandum of appeal, record of appeal,  submission by the appellant and considered the applicable law. I find   that the issue for determination is whether the appellant met the   threshold   of setting aside an interlocutory  judgment

11.  From the proceedings in the record of appeal, it is a fact that the suit was instituted on the 4th August, 2016 by the Respondent and the Appellant   filed a memorandum of appearance within 14 dates on 18th August, 2016. From foregoing, it is clear that the appellant was well aware of the proceedings in the lower court and consequences of  which they filed a memorandum  of appearance.

12. On the 2nd September, 2016, an interlocutory judgment was entered  against  the Appellant  after the Respondent  applied for and  same   following failure by appellant to file a defence. From the proceedings and a reading through the Appellants’ supporting  affidavit dated 16th February, 2017, the Appellant does not explain why  the defence filed on the 4th November, 2016 was filed two months after  lapse of time.

13.  Ordinarily, the court will not set aside or vary interlocutory judgment  because it would essentially be setting back the plaintiff’s progress in prosecuting its case, hence causing it to suffer prejudice. The court  must therefore be satisfied  that  the defendant  has offered a very  plausible explanation as  why  he failed to file his memorandum of  appearance  and defence  within the  prescribed period  under the Civil Procedure Rules, 2010, before  such judgment can be  set aside and /   or varied.

14.  It is  my finding  that the appellant, even after filing  a defence   statement two  months after the lapse of  time, they never  bothered to    request for court’s leave  to have the defence admitted out of time  by   the trial court. And not having given an explanation whatsoever as to  why the defence was not  filed on time, the  appellant  is guilty of lances.

15.  The Appellant only moved this Honourable court to set aside the interlocutory judgment on the 16th February, 2017, approximately 3 months   after filing this defence and this is only after being served  with a notification of entering  of judgment on the 9th  February , 2017,   hence the application by the Appellant to set aside  the interlocutory   was an afterthought.

16.  The court of appeal in the case of WAWERU VRS NDIGA (1983) KLR 236, reviewed and up held its previous decisions on the application   under Order 10 Rule 11 of the Civil Procedure Rule and held that a   court has unfettered discretion to do justice between the parties. It    further  held that it may be just and on the facts of a particular case to  set  aside and exparte  judgment to avoid hardship or injustice arising  from inadvertence  or  mistaken even though negligent, but the  discretion  should not be exercised to assist anyone to delay  the course of  justice, as delay  defaults  equity.

17.  It is worth noting that the right to a fair trial as enshrined in Article   50 (1) of the Constitution is a fundamental human right and the cornerstone of the rule of  law. It also ties up with the right to access  justice under Article 48 of the Constitution. It is the duty of this court  therefore, to accord or ensure every person who has submitted  themselves to its jurisdiction, an opportunity to ventilate their grievances.

18. Ogolla, J in SHAILESH PATEL T/A ENERGY CO. OF AFRICA VRS KESSELS ENGINEERING  WORKS  PRT LTD & 2 OTHERS  ( 2014) e    KLR  despite finding that there was a regular judgment entered against the  defendants  and despite finding the  proposed defence not to  appear to address the issues in the claim, nonetheless allowed the application  for  setting aside interlocutory judgment while acknowledging the defendant’s right under Article 50 of  the  Constitution to a fair hearing.

19.   Be that as it may, the power to set aside  an interlocutory judgment  is  discretionary  that should be exercised with a lot of caution, to avoid  hardship or  injustice arising from inadvertence or mistake even  though  negligent, but the discretion  should not be exercised to assert  anyone to delay the cause of justice. Delay defaults equity. The power    of the  court to set aside  interlocutory judgment was considered in the   case of PHILLIP   KIPTOO CHEPWOLO & MUMIAS SUGAR CO. LTD    VRS AUGUSTINE KUBENDE ( 1982-88) KAR 1036,where the court  of appeal in adopting  principles set out in the English case of EVANS   VRS  BARLTAM (193) Ac 473) at page 480, Lord Atkin stated this;

“ The  discretion is in terms unconditional. The court’s however,  have laid down for themselves rules to guide   them in the normal excercise of their discretion. One is that 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 thought it should  always be  remembered that   to deny the subject a hearing should be the last resort of the court”

20.   This court therefore finds that it is in the interest of justice that the  Appellant be given a fair and reasonable opportunity to present his  case to enable the court consider the same on merit and make a determination thereof.

21.     In arriving at the said conclusion, the court has had due regard to the  case of CIVIL CASE NO. 3399 OF 1992, FREDRICK CHEGE  KAMENWA VRS ARON K KANDE where the court of appeal held that;

“….notwithstanding the regularly of and exparte  judgment, a court may set aside the same if he has reasonable defence on the merit.”

And CIVIL CASE NO. 222 OF 2010, NINNIE WAMBUI KIBINGE & 2  OTHERS VRS MATCH ELECTRICALS LIMITED, the court held that;

“ …..it does not follow that just because  a mistake has been made a party should suffer  the  penalty of  not   having his case heard on merit..”

22.  Therefore, the upshot of this judgment is that court has found that the appellant’s appeal succeeds with the following orders;

(a) The notice of motion application  dated 16th February, 2017 and filed on  even date, being merited, be and is hereby allowed in terms of prayers No 3 and 4  therein;

(b) Consequently, the judgment delivered on the 9th July, 2017 and consequential orders therefor hereby  conditionally set aside;

(c) The defendant is hereby directed to file and serve its pleadings in response to the plaintiff’s claim within 14 days from today;

(d) The plaintiff will be at liberty to respond to the  defendant’s defence within fourteen (14) days from the   date of service. The timeline for filing subsequent   pleading shall be as set out in the Civil Procedure Rules,   2010;

(e) To avoid confusion in the file, the Defendant  memorandum  of  appearance  and  defence filed on 18th  August ,2016 and 4th November, 2016 respectively be   and are hereby  expunged from the court record;

(f) The defendant to pay to the plaintiff throw away  costs in the sum of Ksh 20,000 within the next fourteen (14)  days from the  date hereof;

(g Failure to comply with the above orders, the plaintiff will be at liberty to  apply for appropriate orders.

Orders accordingly.

Ruling delivered, dated and signed this 11th day of October, 2019.

D. O. CHEPKWONY

JUDGE