Derrick & another v Mokua (Civil Appeal E138 of 2023) [2025] KEHC 19 (KLR) (10 January 2025) (Judgment)
Neutral citation:
[2025] KEHC 19 (KLR)
Republic of Kenya
Civil Appeal E138 of 2023
DKN Magare, J
January 10, 2025
Between
Davy Motari Derrick
1st Appellant
Daniel Mogaka Mainye
2nd Appellant
and
Felistus Moraa Mokua
Respondent
Judgment
1.This Appeal arises from the Ruling and Order of Magistrate Court delivered on 24.8.2023 by Hon. CN. Sindani, in Ogembo PMCC No. E186 of 2022. The court declined to set aside ex parte judgment. The court set aside ex parte judgment in a related matter, being, Ogembo PMCC No. E186 of 2022.
2.The Appellant filed this Appeal and preferred the following material grounds in the Memorandum of Appeal dated 7th August 2023.a.The Trial Court erred in law and fact in disallowing the Appellant’s Application dated 3.4.2023 when he had allowed a similar Application in Ogembo PMCC No. E187 of 2022.b.The Trial Court erred in law and fact in dismissing the Applicant’s Application and allowing execution that was prejudicial to the Appellant.c.The Trial Court erred in law and fact in failing to find the Respondent culpable of not serving the Respondent in good time.
3.The impugned Ruling arose from an application dated 3.4. 2023 that sought to set aside the Interlocutory Judgment in Ogembo PMCC No. E186 of 2022. The Grounds of the Application were that the Appellants were not properly served with the summons to enter appearance. It was also contended that the Appellants were condemned without a hearing having not been served with the summons to enter appearance.
4.The Respondent opposed the Application through the Replying affidavit principally on the ground that there was proper service of the summons. It was also contented that the learned magistrate correctly established that whereas the draft defence in Ogembo PMCC No. E187 of 2022 raised triable issues, there was no demonstrable triable issue raised in Ogembo PMCC No. E186 of 2022.
Submissions
5.The Appellant filed submissions dated 12.9.2024 in which it was submitted that court erred in finding proper service of summons when there was none. Reliance was placed on Order 5 Rule 5 of the Civil Procedure Rules to canvas the argument that summons ought to have been issued to the Appellants calling them to enter appearance and file defence. It was the case of the Appellants that the summons in this case was served to a person other than the Appellants as evidenced by the different mobile phone numbers used.
6.It was submitted that the default judgement was irregular and ought to be set aside. The Appellants relied on the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another (2016)e KLR to submit that the Appellants were entitled to leave to defend the suit. The Appellant urged this court to apply its discretion to allow the Appeal and set aside the default judgement. They relied on John Peter Kiria & Another vrs Pauline Gakwiria (2013)e KLR to submit that no party should be shut out of presenting its defence.
7.On the part of the Respondent, submissions dated 10.9.2024 were filed in which it was submitted that the court was correct in dismissing the Application since there was evidence that the summons to enter appearance was properly served following which the Appellant failed to enter appearance or file Defence within the stipulated time. The Respondent also submitted that in Ogembo PMCC No. E187 of 2022, the lower court correctly appreciated that there was a meritorious defence while in Ogembo PMCC No. E186 of 2022 there was no meritorious defence.
8.Further, it was submitted for the Respondent that the Appellants never requested even to cross examine the process server on the contents of the affidavit of service that proved the service of the summons.
Analysis
9.This being a first appeal, the court should re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:
10.The duty of the first appellate court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the judges in their usual gusto, held as follows; -
11.Having proceeded by way of affidavits, this court has latitude in these matters. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR), Kiage JA stated as doth: -
12.The issue that falls for this Court’s determination is whether the lower court erred in dismissing the Appellant’s Application dated 3.4. 2023 that sought to set aside the interlocutory Judgment in Ogembo PMCC No. E186 of 2022. The court is also alive to the fact that the lower court exercised an act of discretion in declining the Appellants’ Application. In the case of and this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
13.The matter turns on interpreting the fidelity of the affidavit of service. It is noteworthy that observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-
14.The court has to reevaluate the procedure followed towards establishing validity of service of the summons to enter appearance. I agree with the holding of the Supreme Court of India which stated in Sangram Singh vs. Election Tribunal, Koteh, AIR 1955 SC 664, at 711 cited in the case of Gerita Nasipondi Bukunya & 2 others v Attorney General [2019] eKLR that:
15.The Court exercises its discretion in allowing or rejecting Setting aside ex parte Judgement. When ex parte Judgement is set aside, it allows a Defendant an opportunity to be heard. On the other hand, a defendant who has spurned being heard, should be driven off the seat of complacence. Before driving out a party out of the seat of justice, the court must be satisfied that a great injustice will not be occasioned by not allowing parties to be heard. The court of appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173 stated as forth
16.The Application by the Appellants which was based on the grounds that the Judgement was entered without proper service when there was a meritorious Defence. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that:-
17.As I have already observed, setting aside an ex parte Judgment is an exercise of judicial discretion. Judicial discretion is unfettered. However, it must be exercised in accordance with the law. The rules of procedure bespeak the path to substantive justice. I note that the court process server who served the impugned Affidavit to confirm personal service was not cross examined by the Appellants. The Respondent’s case on this is that it is the Appellants who did not apply to cross examine the process server. Ojwang, J (as he then was) in Haile Selassie Avenue Development Co. Limited v Josephat Muriithi & 10 others [2004] eKLR held as doth:
18.Unless and until the court has pronounced a judgement upon hearing parties on the merits or by consent, when Judgement has been obtained only by a failure to follow or adhere to any of the rules of procedure, the court has the primary duty of balancing the prejudice of setting aside ex parte judgement with the supremacy of the right to be heard. I am also persuaded by the reasoning of Odunga J, (as he then was) in as Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR.28.In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge. It is, as I have held elsewhere in this ruling an unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication.The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to invoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure.
19.One aspect of this case that disturbs the court is the nature of service. Service is supposed to be carried out in compliance with the law. The affidavit of service has to comply with Order 5, rule 15(1) of the Civil Procedure Rules in order to count as evidence of service. It provides as thus:
20.It is true that a process server is to be cross examined where there is doubt. In this case the affidavit of service is bogus. It falls short of the affidavit of service. There is nothing showing who identified the Appellants for service. This is more crucial, where one of the parties is deceased. The description of the parties are important. Service upon the insurance is good service, but for the insurance. It is not party to the suit. The affidavit is otiose vis-à-vis service as only parties involved in identifying the Appellants needed to swear an affidavit. I am not satisfied that there was proper service. Without proper service the court was obligated as a matter of right to allow the application.
21.Overall, what I understand the Appellants to submit is that a different person was served and not the Appellants. In my view, the Respondent did not satisfy the procedure as anticipated on the service of the summons to enter appearance. In Pindoria Construction Ltd vs. Ironmongers Sanytaryware Civil Appeal No. 16 of 1976 it was held that:
22.Considering all factors of this case, I am of the view that the lower court erred in dismissing the application to set aside default judgement in Ogembo PMCC No. E186 of 2022 while allowing a similar Application in Ogembo PMCC No. E 187 of 2022. The subject accident occurred out of the same course of action and the court could not find a triable defence in one and none in the other case as the issues were the same.
23.What constitutes a triable issue was elucidated well in the case of Patel vs. E.A Cargo Handling Services Ltd (1974) EA 75 at p.76 Duffus P. to be an issue which raises a prima facie defence and which should go to trial for adjudication. I have perused the draft defence. It is not an idle one. Even where the Respondent was a passenger, it does not rule out the issue of liability and involvement or even addition of a third party. The court cannot base its decision of exparte proceedings already undertaken.
24.The question whether, the appellants raised a proper defence is superfluous and is only useful where there is proper service. I understand the Respondent to maintain the position that the Defence filed under Ogembo PMCC No. E186 of 2022 subject of this Appeal had no triable issues as found the lower court. A triable issue, however, was not an issue that must succeed. In Five Forty Aviation limited v Tradewinds Aviation Services Limited [2015] eKLR where the Court of Appeal, citing its previous decisions stated as follows:-
25.The ex parte judgment must therefore be set aside ex debito justiceae as a matter of right. Where there is a right to defend, then the court cannot look at the defence. In Kwanza Estates Limited v Dubai Bank Kenya Limited (In Liquidation) & 2 others [2019] eKLR, the court of Appeal posited as doth:24.In our view, the factors which the Judge took into account are undoubtedly relevant matters for consideration in an application to set aside an ex parte judgment with which the court was dealing. We are fully in agreement with the Judge when he expressed:25.The position taken by the Judge is consistent with the decision of this Court in the case of James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another [2016] eKLR on which the Judge relied to the effect that once it comes to the notice of the court that a judgment is irregular, the court does not have to be moved to set it aside. It can do so suo motto without venturing into considerations whether the intended defence raises triable issues or whether there was delay in applying to set aside the irregular judgment.
26.It is more poignant that the second Appellant was deceased. There is no indication on where he was served. The court is entitled to set aside such irregular judgment, even suo motto. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, the court of Appeal[Makhandia, Ouko & M’Inoti, JJ.A] posited as doth:
27.The upshot of the foregoing is that I am satisfied that the Appellants, in particular the first Appellant has a right to defend himself. Judgment having been entered against the deceased without service, the judgment against the second Appellant is a nullity. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;
28.In the circumstance I find merit in the Appeal and is accordingly, allowed. The issue of costs is governed by Section 27 of the Civil procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
29.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
30.No-one can begrudge a successful party from getting costs. The 1st Appellant shall have costs of Ksh 45,000/=.
Determination
31.In the end, I make the following orders in the interest of justice:i.The Appeal is allowed. The interlocutory Judgement in Ogembo PMCC No. E186 of 2022 and all consequential orders are set aside, as a matter of right as there was no proper service on the Appellants.ii.The Respondent to extend summons and serve upon the Advocate of the 1st Appellant who shall file defence within 15 days of service.iii.Judgment against the Daniel Mogaka Mainye (deceased) is a nullity since the 2nd Appellant is deceased. No proceedings against Daniel Mogaka Mainye (deceased) shall be undertaken unless and until the law related to suits against deceased persons is complied with.iv.The 1st Appellant shall have the costs of the Appeal assessed at Kshs. 45,000/= payable within 30 days, in default execution do issue.
DELIVERED, DATED AND SIGNED AT KISII, VIRTUALLY ON THIS 10TH DAY OF JANUARY 2025. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -M/s Mose, Mose & Mose advocates for the AppellantM/s Ooga and company advocates for the RespondentCourt Assistant – Kiptum