Background
1. For determination is the application dated 24th November 2022 filed by the 4th defendant, seeking to set aside the interlocutory judgment entered against them. The application further seeks to stay the execution of the ruling by the Hon. Elizabeth Tanui issued on 21st November 2022.
2. The application is premised on the fact that the 4th defendant was not served with the summons to enter appearance and the plaint. The 4th defendant further claims that the alleged service by way of WhatsApp on the telephone number 0728799167 as the 4th defendant’s last known WhatsApp number is erroneous as it belongs to a former employee of the 4th defendant. The 4th defendant further argues that he has a good defence and that the application was brought without undue delay.
3. The plaintiff opposed the application by filing Grounds of Opposition dated 15th December 2022 and a replying affidavit sworn on 13th December 2022 by BENJAMIN MUNGE, the Credit Administrator of the plaintiff. It opposed the application on the basis that the default judgment entered against the 4th defendant was regular since the 4th respondent was properly served, that the 4th defendant did not have a plausible defence and finally that the application had been brought to court after undue delay.
Analysis and determination
4. I have carefully considered the pleadings, rival submissions and authorities presented before the Court. The main issue for determination is whether the court should set aside the judgment dated 21st November 2022. 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.”
5. The terms upon which the court may vary or set aside a default judgment are also well crystalized, following numerous judicial pronouncements on the issue. The Court of Appeal in the case of James Kanyiita Nderitu & Another Versus Marios Philotas Ghikas & Another, Civil Appeal No. 6 of 2015 eKLR, held that;-
" From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit.
In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. (emphasis mine)
(See also Mbogo & Another v. Shah (supra), Patel v. EA. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986/ KLR 492 and CMC Holdings v. Nzioki [2004/ 1 KLR 173).
6. It is not controverted that the 4th defendant herein did not file a defense against the plaintiff’s suit, for reasons which he blames the plaintiff. That is the main bone of contention; whether there was service on the 4th defendant.
7. Order 5 of the Civil Procedure Rules sets out the procedure on service of summons. Order 5 rule 22B provides for service through electronic mail service.
8. The plaintiff stated that the summons and plaint were served on the 4th defendant on 19th August 2022. There were attempts at serving the defendant using the email address that appeared on the valuation report, as well as physical service and finally via WhatsApp to the mobile number that appeared on the valuation report prepared by the 4th defendant.
9. I have looked at the Valuation Report dated 8th September 2019 which was prepared by the 4th defendant. The telephone number that appears at page 1 of the report is 0728799167, as the contact for the 4th defendant’s Head Office. The allegation that the number belongs to a former employee is therefore not plausible. This is the same number that was used by the plaintiff to serve the summons and plaint to the plaintiff.
10. There is evidence of a screenshot indicating service on the 4th defendant by WhatsApp, which is a mobile message application. Order 5 Rule 22C allows service of summons by way of mobile enabled messaging applications, to the defendants last known phone number.
11. An affidavit of service sworn by RUTH NGURE on 14th September2022 indicates that the 4th defendant was indeed served on 19th August 2022. There is no other obligation imposed on a plaintiff under Order 5 Rule 22B and for that reason I find that the service on the 4th defendant was regular and well effected and that judgment against the 4th defendant was therefore regularly entered.
12. The next question that this Court is required to determine is whether there are plausible reasons for exercising its discretion to set aside the default judgment. I am guided in this regard by the holding in Shah vs Mbogo [1967] EA 166 and Patel v East Africa Cargo Handling Services Ltd (1974) EA 75. The court set out the following considerations:
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 a triable issue d which should go to trial for adjudication with a prospect of success.
13. I have already found that service was regularly effected on the 4th defendant and that the reasons that have been given for not entering appearance and putting in a statement of defence are not plausible. The time taken to file this application was not inordinately long. This alone is not sufficient to grant the orders sought by the defendants.
14. Turning to the draft statement of defence filed by the 4th defendant, I note that the same contains general denials of the averments in the plaint. This court is not required to determine the merits or demerits of a case at this point. A cursory look at the pleadings should however disclose triable issues in response to the plaint.
15. To this extent I do concur with the Learned Judge in the case of 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…”
16. I find the statements of denial by the 4th defendant to be simply evasive. They do not answer to any point of substance. The Court must have some information to work with to come to a finding that there are triable issues in the matter. A general traverse without any explanation does not assist the court.
Determination and orders
17. In conclusion therefore, I find and hold that the application dated 24th November 2022 filed by the 4th defendant is without merit and the same is dismissed with costs to the plaintiff.