DAN OWINO ONGOLA VS WASHINGTON OLUOCH DULO DAN OWINO ONGOLA VS WASHINGTON OLUOCH DULO

INTRODUCTION

The appellant has appealed to this court against a decision of the learned Honorable magistrate declining to set aside a default judgment.

APPELLANT’S CASE

The appellant’s main argument before this court is that the learned Honorable magistrate did not properly exercise her discretion in disallowing their application for setting aside the judgment.
According to the appellant if the learned Honorable magistrate had considered the application on merit she would have found that the appellant was prevented by good cause from filing his defence in time.
Further, the appellant maintains that the intended defence, a draft of which was filed in support of the application for setting aside raises triable issues. It is for that reason that the appellant urges this court to find that he ought to have been granted an opportunity to defend the suit.
As part of his defence the appellant maintains that the accident was caused by the negligence of another party who was riding a motor cycle. It is the intention of the appellant to have the third party enjoined in the proceedings.
In support of the appeal the appellant has placed reliance on Article 159 of the Constitution. He contends that the parties had consented at the police station level to have the matter resolved out of court.
The appellants plea is that the court ought to have allowed him to defend the suit so as to give the two parties an avenue to resort to alternative justice mechanisms under the law.
According to the appellant if the judgment is not set aside he stands to suffer irreparable damage and prejudice.
Further, the appellant urged that the court under Order 10 Rule 11 of the Civil procedure Rules has an unfettered discretion to set aside the judgment and allow him to defend the suit on merit.
In support of his case the appellant has cited the case of Philip Kiptoo Chimwilo & Mumias Sugar Co. Ltd Vs. Augustine Kubenda KAR 1036 where the court held:-

“The discretion is in terms unconditional. The courts however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of the merits meaning that the applicant must produce to the court evidence that he has a prima facie defence. The reason , if any, for allowing judgment and thereafter applying to set aside is one of the matters to which the court will have regard, in exercise of its discretion. The principle, is that unless and until the court has pronounced a judgment upon the merits or by consent , it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow an of the rules of procedure.”

The appellant has also submitted that they had an agreement with the respondent to have the matter resolved out of court.
The case of the appellant simply put is that he has a solid defence as opposed to what the learned Honorable magistrate classified as a mere denial.
The potential prejudice to the respondent according to the appellant can be assuaged by an award of costs.
The appellant contends that they offered to pay costs to the respondent at paragraph (vii) of the notice of motion and paragraph 8 of the affidavit which the court did not consider.

RESPONDENT’S CASE

The respondent on the other hand has vehemently opposed the appeal and has invited the court to review the material placed before the learned Honorable magistrate as a first appellate court in order to determine the veracity of the claims by the appellant.
The respondent holds the view that the application for setting aside was provoked by the execution process when the declaratory suit was filed and served upon the insurer on 3/4/2023.
The application for setting aside is dated 31^st March 2023. The same came up for hearing on 14/3/2024 but the appellant failed to appear and prosecute his application. However, the magistrate did not dismiss the application but gave a date for ruling. In the intervening period the appellant is said to have filed submissions which were considered by the court and delivered a ruling on 3/4/2024.
Counsel for the respondent has placed reliance on the celebrated case of Selle & Another Vs. Associated Motor Boat Co. Ltd [1968] EA 123 imploring the court to subject the whole of the evidence before the lower court to a fresh and exhaustive examination to determine whether the application was merited at all.
The respondent’s argument is that the appellant did not participate in the suit deliberately and there is no dispute on the part of the appellant that he was aware of the suit all the time relevant to these proceedings.
The respondent submitted that the mere fact that there could have been a mix up at the insurers company should not be a good ground for this court to allow the appeal.
The view taken by the respondent is that the appellant and his insurers are not reading from the same script and if so, they must be out then to obstruct justice and delay the same.
The respondent has asked this court to consider the appellants record of appeal at page 74 paragraph 3 and note that the insurers have denied ever insuring the appellant.
The effect of the denial by the insurance according to the respondent company is that the appellant has not come to court with clean hands and should therefore not benefit from the exercise of discretion of this court in setting aside.
The respondents argument is that if indeed the appellant and his insurers were ready to settle the matter as alleged by the appellant , the defence by the insurer in the declaratory suit would read otherwise.
The respondent goes further to urge that the learned Honorable magistrate in dismissing the application for setting aside exercised judicial discretion judiciously and this court should not interfere with the exercise of discretion by the lower court.
The respondent cited the case of Shah Vs. Mbogo [1967] AE and in which the court of Appeal held:-

“The discretion intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.”

The position of the respondent is that the appellant did not provide any reasonable or plausible reason for failure to file a defence.
The fact that the appellant has heaped blame on the insurer should not be reason enough for the court to allow his application for setting.
The law on setting aside ex parte judgment is as espoused in the case of Joseph Lekode Teleu Vs Jonathan Paepai & Another [2022] eKLR where the court held:-

“The applicant ought to know that having been sued by the respondent it was his obligation to ensure that the suit filed against him was expeditiously prosecuted in court by making all the necessary follow ups. He was not supposed to sit pretty and wait until an execution order is served upon him for him to rush to his advocate’s chamber for an interpretation of the same.”
ANALYSIS AND DETERMINATION.

The appellant does not deny service having been effected upon him by the respondent.
It is his contention that the failure to file defence was occasioned by the insurance company.
The insurance company in its own defence to the declaratory suit denies ever insuring the appellant.
The court is thus left to wonder who is this that the appellant had taken the papers to for purposes of either defending the suit or settling the claim.
The relief sought by the appellant in the Lower court is of an equitable nature. The setting aside of a properly secured interlocutory judgment by a court is an act of gratuity meant to avail the applicant an opportunity to tell his side of the story to the court before the court proceeds to pronounce itself on the merits of a case.
The duty upon the applicant in an application for setting aside of judgment and leave to file a defence out of time is to persuade the court that there was indeed an excusable mistake, in advertence or error on his part in failing to file a defence in time.
That is a duty that cannot be casually explained by stating that the applicant gave the insurer the pleadings and expected the insurer defend the suit.
Liability over the claim is personal and of direct consequence to the applicant. He must demonstrate to the court the effort he made upon receipt of the pleadings from the plaintiff to ensure that the suit was defended.
It must be noted that if courts were to allow applications for setting aside on the ground that “it wasn’t me. It was my insurer” the courts would be swamped with all manner of applications for setting aside.
Secondly, there would be no guarantee that persons seeking justice and equitable relief from the court by way of setting aside orders are not acting in collusion with their insurers to delay justice.
The applicant must present a case that a court would certainly be able to see a genuine mistake or error to justify an order for setting aside.
The rules committee in setting specific timelines for filing of a defence to a claim must have intended to ensure that litigation is brought to a close within reasonable time.
The appellant in this case has not explained to the satisfaction of this court why the insurer delayed in appointing an advocate to defend the suit.
The court has noted that the affidavit in support of the application for setting aside sworn by the appellant at paragraph 3 states:-

“…., forwarded to my insurers M/S Fidelity Shield Insurance Company the summons to enter appearance for purposes of appointing an advocate to defend the suit.”

It is clear from that statement that service upon the appellant was proper and his insurer failed to do what the appellant expected them to do. The respondent cannot be held at ransom by an insurer who seems to be out not to defend suits nor honor claims.
The dispute as to whether the appellant was insured by Fidelity Shield Insurance Company should not be a concern for the respondent.
The appellant should have followed up with his insurer to ensure that the suit was defended. Having failed to do so he must bear the consequences.
Further, this court notes that the Insurance Company that the appellant alluded to as having put him in the unenviable position at Page 74 of the record of appeal, denies ever having insured him.
It is thus clear to this court that the Lower court was indeed right in dismissing the application.
The appellant did not satisfy the court that he was within the category of litigants that courts should entertain whenever they are called upon to exercise their discretion to set aside a properly secured default judgment.
The appellant’s action and by extension that of the insurer was deliberate and thus not in good faith.
I agree with the respondent that the appellant and his insurer are bent on delaying justice and are indeed not interested in the matter being amicably settled.
The pleadings of the appellant and the defence of the insurer to the declarations sought expose them as being dishonest litigants seeking to draw from the pure waters of equity. The hands of the appellant and his insurer are not clean. They are therefore precluded from any relief in equity.
Equity cannot aid them for their indolence and demonstrate dishonesty.
A court in considering whether to set aside the default judgment must be satisfied that there would be no prejudice that the respondent is likely to suffer.
In the instant case the respondent is likely to be drawn into an endless litigation pitting the respondent against his insurer as well as the motor cycle rider alluded to who is likely to be enjoined in the suit.
The court cannot close its eyes to that factual matrix in determining whether the learned Honorable magistrate properly exercised her discretion in disallowing the application for setting aside.
If the insurer had not denied the fact that he had insured the appellant this courts would have been minded to consider the plea by the appellant.
The insurer has unwittingly left the appellant to his own devices in dealing with the claim. The court notes that extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court- See Kenya Revenue Authority & 2 Others Vs. Mount Kenya Bottlers & 4 Others ( Application No. 12 [E021] of 2021) [2022] KESC 3 (KLR) 10^th February 2022.
The appellant, besides stating that the defence raised triable issues, should have also persuaded the court that the delay in presenting the application was sufficiently explained.
The appellant could easily have done so had he secured an affidavit from the claims manager of his insurance company to support the allegation that the failure to file the defence was on account of an error of the insurer.
As pointed out elsewhere in the judgment the appellant and his insurer appear to be pulling in different directions and as such this court cannot come to the aid of the appellant.
Honesty is key in this kind of applications and parties must be reminded that the courts will not be available to assist mischievous litigants whose sole aim is to delay justice.
The upshot of the above is that this appeal is dismissed with costs to the respondent assessed at Ksh. 50,000
It is so ordered.