Background
1. This ruling determines the application dated 24th November 2022. By the said application the 4th defendant seeks to set aside the default judgment entered herein and prays for leave to defend the suit. The main ground on which the application is premised is that the 4th defendant was not served with the summons to enter appearance as well as the plaint in contravention of Order 5 rule 3 of The Civil Procedure Rules. The application is supported by the affidavit sworn by EDWIN MUTWIRI on 24th November 2022.
2. The application is opposed by the grounds of opposition dated 15th December 2022 and a replying affidavit sworn by BENJAMIN MUNGE, the Credit Administrator employed by the plaintiff, on 13th December 2022.
Analysis
3. The main bone of contention in this matter is whether there was proper service on the 4th defendant of the summons to enter appearance and the plaint, which the 4th defendant denies. Order 5 of the Civil Procedure Rules sets out the procedure on service of summons. Order 5 rule 22C allows for service of summons by way of mobile enabled messaging applications (whatsapp), to a defendant’s last known phone number.
4. It has been asserted that the alleged service via whatsapp to phone number +254 72 8799167 belonged to a previous employee of the 4th defendant and was therefore not proper service. The plaintiff does not deny service through the states phone number as stated by the 4th defendant. In its defense the plaintiff maintains that the said service via whatsapp was employed as a last resort, after attempts at service through electronic mail and physical service proved futile.
5. The plaintiff further maintains that the number through which service was effected was listed on the 1st page of the valuation report prepared by the 4th defendant and that the same was therefore delivered to the 4th defendant. The plaintiff has further attached evidence of a screenshot indicating the said service.
6. A cursory look at the valuation report does in fact confirm that the number listed on the face of the report is indicated as belonging to the HEAD OFFICE of NINE WEST VALUERS LTD, which is depicted as a limited liability company. Suffice to say, the number is not indicated as a personal mobile phone number contrary to the assertions made by the 4th defendant. Furthermore, no evidence has been brought before this Court to prove that the number belonged to one ROBERT KIGEN as averred by the 4th defendant.
7. For these reasons this Court finds the averment that the number belonged to a previous employee of the 4th defendant to be untenable. It is my view that there was indeed proper service as required under Order 5 rule 22C of the Civil Procedure Rules, to the last known phone number of the 4th defendant.
8. Upon further interrogation of the evidence, this Court notes that the letter from the 4th defendant’s advocates dated 14th November 2022 finally confirms that indeed the 4th defendants were aware of the suit. They wrote to the plaintiff’s advocates requesting to be served with the pleadings so as to enter appearance.
9. This, the Court notes, was roughly 2 months after service on 6th September 2022, as evidenced by the whatsapp screen shot. No explanation has been given for this intervening period of delay. The averment that the suit was brought to the attention of the 4th defendant by the said former employee is in any case, unsubstantiated.
10. Furthermore, the letter of 14th November 2022 was written 1 month subsequent to an extra ordinary board meeting of the 4th defendant, held on 6th October 2022. It was at this meeting that a resolution was passed to have the 4th defendant’s advocates appointed to represent the company.
11. Again, the Court notes that no reason has been given for this further delay between the board meeting and the communication from the 4th defendant’s advocates. Finally, the letter of authority to plead though sanctioned on 6th October 2022 pursuant to the board resolution, is actioned and dated 2nd November 2022, 1 month later, again, with no explanation.
12. The totality of the evidence before the Court demonstrates a lack of diligence on the part of the 4th defendant coupled with discrepancies in their narrative. This Court reads this as a deliberate attempt by the applicant to delay the cause of justice, a tactic this Court unequivocally refuses to endorse. It is clear that the applicant was jolted into action after the default judgment was entered and out of slumber filed this application within 3 days of the judgment.
13. The 4th defendant failed to enter appearance and file a defense despite being served and as such the default judgment entered against the 4th defendants on 21st November 2022 was regular and proper.
14. Even if this Court were to interrogate further on whether such default judgement ought to be set aside, of relevance is Order 10 rule 11 of the Civil Procedure Rules which provides as follows;-
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
15. Further reference is made to the Court of Appeal’s decision in the case of James Kanyiita Nderitu & Another Versus Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015 eKLR as well as the decision in Shah vs Mbogo [1967] EA 166 and Patel v East Africa Cargo Handling Services Ltd (1974) EA 75.
16. These two decisions, amongst other judicial pronouncements confirm the key considerations in an application for setting aside of a default judgment. I would summarize these considerations as follows: -
i. The discretion should be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error;
ii. The discretion is not meant to assist a person who has deliberately sought to obstruct or delay the cause of justice;
iii. The court must be satisfied that there is a defence on the merits, which means a defence that raises triable issues which should go to trial for adjudication with a prospect of success;
iv. The reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be;
v. The length of time that has elapsed since the default judgment was entered;
vi. The respective prejudice each party is likely to suffer;
vii. Whether on the whole it is in the interest of justice to set aside the default judgment.
17. I do believe that my analysis of the facts and evidence has traversed these guidelines, which I wholly align to. Save to add that I have looked at the statement of defense and the evidence produced by the 4th defendant. In my view, the said statement of defense is vague and contains but evasive and general statements of denial. This in my view is not sufficient to disclose triable issues in response to the plaint.
18. In line with this, I align myself with the decision of this Court in Margaret Njeri Mbugua Vs Kirk Mweya Nyaga (2016) eKLR where the court, while dealing with a defence of mere denial observed as follows:
"A mere denial is not a sufficient defence and a defendant has to show either by affidavit, oral evidence, or otherwise, that there is a good defence…”
19. I am not persuaded that any point will be served by going to full trial in this matter. The delay that the matter has had since it was filed to date is sufficient prejudice on the plaintiff. I therefore decline to set aside the default judgment entered on 21st November 2022.
Disposition
20. The application dated 24th November 2022 is devoid of merit. It is dismissed with costs to the plaintiff/respondent.