Miriti v Murianki (Suing on behalf of Agusta Karigu Murungi Deceased) (Civil Appeal E010 of 2020) [2022] KEHC 16337 (KLR) (16 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16337 (KLR)
Republic of Kenya
Civil Appeal E010 of 2020
EM Muriithi, J
December 16, 2022
Between
Stanley Miriti
Appellant
and
Julius Murungi Murianki
Respondent
Suing on behalf of Agusta Karigu Murungi Deceased
(Being an appeal from the Ruling of Honourable S. N Abuya (SPM) delivered on 19/10/2020 in Meru CMCC No. 202 of 2012)
Judgment
1.The respondent herein, the plaintiff in the trial court, sued the appellant for compensation for personal injuries by a plaint filed on July 20, 2012 seeking special damages of Ksh 29,300 plus interest, general damages under the Law Reform Act and the Fatal Accidents Act plus costs and interest at court rates. When the appellant failed to enter appearance and file his defence after being served with the summons to enter appearance and the pleadings, the court on May 28, 2013 entered judgment for the respondent, and the matter proceeded for formal proof on June 16, 2014, when the respondent and his witness testified.
2.In its judgment delivered on October 22, 2014 in the presence of both parties, the trial court found the appellant to have been wholly liable for the accident and awarded Ksh1,200,000 for loss of dependency, Ksh 200,000 for loss of expectation of life and special damages of Ksh 29,350 together with costs and interest. The appellant filed an application dated June 22, 2020 seeking to have the interlocutory judgment entered herein set aside and leave to enter appearance and file the defence. When the appellant failed to appear in court on July 6, 2020, the court proceeded to dismiss the application with costs.
3.The appellant moved with speed to have the order of July 6, 2020 dismissing the application dated June 22, 2020 set aside and the same was reinstated for determination on merits, on September 14, 2020. The application was subsequently heard on merits and the court on October 19, 2020 dismissed the same with costs to the respondent, and marked the file as closed.
The Appeal
4.Aggrieved by the said dismissal of his application dated June 22, 2020 vide the ruling of October 19, 2020, the appellant filed a memorandum of appeal in this court on October 27, 2020 raising 4 grounds as follows:1.The learned magistrate erred in law and fact in finding that the appellant was served with the court summons but failed to enter appearance and defend the suit.2.The learned magistrate erred in law and fact in failing to apply the correct principles in setting aside of judgment and therefore reached a wrong finding on the application by the applicant.3.The learned magistrate erred in law and fact by finding that the defendant was duly served but failed to enter appearance yet facts and circumstances of the case did not support the finding.4.The learned magistrate erred in law and fact by refusing to set aside the judgment and holding the appellant liable for the accident yet he did not appear to defend himself.
Submissions
5.The appeal was heard by way of written submissions which were filed on July 27, 2022 and July 28, 2022 respectively. The appellant submits that if the irregular default judgment is set aside, the respondent will not suffer any prejudice that cannot be cured by costs, and relies on David Kiptanui Yego & 134 others v Benjamin Rono & 3 others (2021) eKLR. He urges the court to exercise its wide discretionary powers and set aside the impugned ruling and allow the appeal with costs in order to ensure that justice is served to both parties.
6.The respondent points out some glaring anomalies in the manner in which the appeal had been lodged, as the ruling and/or order appealed against and the respondent’s submissions on the said application have not been availed in the record of appeal, as required by order 42 rule 13 of the Civil Procedure Rules, thus making the appeal fatally defective for want of particulars, and relies on Samson Kimama v Daniel Muyuri & another (2020) eKLR. He distinguishes between a regular judgment and an irregular judgment, as was explained in Fidelity Commercial Bank Ltd v Owen Amos Ndung’u & another HCC No 241 of 1998 (UR) and James Kanyiita Nderitu & Another v Marios Philotas Ghikas & another (2016) eKLR.
7.The respondent urges that the summons to enter appearance were validly served upon the appellant through his agent and manager of his hotel, one Julia Bundi and an affidavit of service sworn by the process server, Baylon Mutahi filed, and since the process server was not cross examined, it must be presumed that his averments were indeed correct. He urges that the averments made in the draft defence were mere denials, and he will be greatly prejudiced if the appeal is allowed, as the memory of the witnesses has since faded because the accident occurred way back in 2009. He urges that the entry of judgment was regularly done and the said judgment was a regular judgment for all intents and purposes, therefore the appeal ought to be dismissed with costs, and relies on Shadrack arap Baiywo v Bodi Bach (1987) eKLR and Kenya Orient Insurance Limited v Cargo Stars Limited & 2 others (2017) eKLR.
Analysis and Determination
8.This being a first appeal, this court is required to consider the evidence adduced, evaluate it and draw its own conclusions bearing in mind that it did not hear and see the witnesses who testified.(See Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123).
9.An issue has been raised that the appeal is fatally defective for want of the ruling and/or order appealed against and the respondent’s submissions. It is true that the appellant, either by accident or mistake did not include the ruling appealed against in the record of appeal, but since the same is in the lower court’s record, which is before this court, that failure is not fatal. This court has also ruled on the impact of failure to attach a judgment, ruling, decree or order appealed from in an appeal to the High Court and found that these may be supplied by a supplementary record of appeal.
10.Grounds 1 and 3 are on service while grounds 2 and 4 touch on setting aside of the judgment, thus the issues for determination are whether service was proper and whether the judgment ought to be set aside.
11.Order 10 rule 2 of the Civil Procedure Rules provides that:
12.Order 10 rule 11 of the Civil Procedure Rules provides for setting aside judgment as follows:
13.Baylon Mutahi, a licenced process server swore an affidavit of service on May 21, 2013 averring that, after receiving summons from the respondent on November 14, 2012-
14.After the appellant neglected to enter appearance and/or file his defence within the stipulated time, the respondent requested for interlocutory judgment on May 22, 2013 which was duly entered on May 28, 2013. The matter was then set down for formal proof hearing and judgment was subsequently entered in favour of the respondent on October 22, 2014.
Regular or Irregular Judgment
15.Was that a regular judgment or an irregular judgment, which ought to be set aside ex debito justitiae? The distinction between the two and its implications was considered by the Court of Appeal in James Kanyita Nderitu v Maries Philotas Ghika & Another (2016) eKLR as follows:
16.This court, without any doubt finds that the judgment herein was regular as service was proper. Having found that the service herein was proper and therefore the judgment was regular, the next question is whether the same ought to be set aside.
17.The test for setting aside a regular ex parte judgment is threefold, that (1) whether there is reasonable explanation for the delay; (2) whether there is a defence on merits; and (3) whether the respondent would in any way be prejudiced.
Defence On The Merits
18.On whether the appellant had a good defence on merits, (Sheridan J) in Sebei District Administration v Gasyali & others (1968) EA 300 was of the view that:
19.The court has looked at the draft defence annexed to the appellant’s application dated June 22, 2020, and notes that the issues raised therein are triable, as they question the causation of the accident and the person to blame for the same. Therefore, justice of this case demands that the appellant’s defence be heard on its merits.
20.Notwithstanding that judgment was entered way back on October 22, 2014, the notice of entry of judgment was served upon the appellant’s insurer belatedly on June 10, 2020. That clearly explains the delay.
The Trial Court’s Finding
21.The trial court found that, “the draft defence annexed to the application is not a defence on merit as it does not raise triable issues and it contains mere denials.
22.The trial court also found that the respondent would be greatly prejudiced if the ex parte judgment was set aside as the accident occurred way back in 2009 and the memory of the witnesses may have already faded.
23.The trial court further found that the appellant had not advanced any good reason for his delay to defend the claim despite having been properly served.
24.On the findings of this court above, the trial court’s conclusion must be set aside.
Costs
25.Although it is indeed true that the respondent will be prejudiced if the judgment is set aside, that prejudice can be compensated by an award of throw away costs as the court may grant. As proposed by Sheridan J. in Sebei District Administration case, supra, it would be wrong to shut out the defendant (appellant herein) who has a triable defence but he should be “visited with severe order as to costs.”
26.In exercise of the discretion of the court under section 27 of the Civil Procedure Act, the court sets the costs of the appeal at Ksh 150,000/- to be paid by the appellant to the respondent.
Orders
27.Consequently, for the reasons set out hereinabove, the appellant’s appeal is allowed in the following terms:1.The ruling of the trial court dated October 19, 2020 is hereby set aside.2.The appellant is granted leave to enter appearance and defend the suit.3.The respondent is entitled to thrown away costs assessed by the court at Ksh 150,000/- to be paid within 30days from the date of the judgment.Order accordingly.
DATED AND DELIVERED ON THIS 16TH DAY OF DECEMBER, 2022.EDWARD M. MURIITHIJUDGEAppearances:M/S Kimondo Gachoka & CO. Advocates the Appellant.M/S F. J. Mugamb & Co. Advocates for the Respondents.