Introduction
1 The Notice of Motion subject of this ruling is dated 6/10/2023. The same has been filed pursuant to the provisions of Sections 3A and 100 of the Civil Procedure Act Cap 21 laws of Kenya and Order 8 Rules 5[1], Order 18 Rule 10, Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law.
1st Defendants/Applicants Case
2 The 1st Defendant seeks for the following orders; -
- That this Honourable court be pleased to stay any further hearing of this suit pending the hearing and determination of this application
- The Honourable court be pleased to set aside the proceedings before this Honourable court of 23rd May 2022.
- The Honourable court be pleased to grant leave to the 1st Defendant to amend the Defence as shown in the draft amended defence.
- The draft Amended Defence be deemed as duly filed upon payment of court fees.
- The Honourable court be pleased to allow the 1st Defendant to tender evidence in support of his defence by enlarging the time within which the 1st Defendant can file witness statements and list and bundle of documents.
- The Honourable court be pleased to recall the Plaintiff for cross examination by the 1st Defendant.
- In the alternative the court be pleased to order that the suit do start de novo.
- The costs of this application be in the course.
3 The application is supported by an affidavit sworn by Murimi Murango Advocate. It is averred that the suit proceeded on 23/5/2022 but with no service of a hearing notice or case management served upon the said Advocate. That on 15/9/2023 he received an email from the 2nd Defendant’s Advocate informing him that the matter was scheduled for hearing on 11/10/2023. That he then wrote back asking for pleadings as the same had not been served upon him. The deponent avers that counsel for the 2nd Defendant informed him that the matter had proceeded in his absence on 23/5/2023 and was coming up on 11/10/2023 for further hearing.
4 The 1st Defendant states through the affidavit that he is yet to file and serve his witness statement and bundle of documents. That he further wishes to amend the Defence to include a counterclaim and to address certain pertinent issues. The 1st Defendant states that mistake of his counsel for non-attendance should not be visited upon him. He seeks for enlargement of time to file his witness statements and to be allowed to cross examine the Plaintiff. That no prejudice will be occasioned to the rest of the parties if the application is allowed. The 1st Defendant states that he is willing to abide by the conditions to be set by the court and the cost implications. That in the alternative the suit be allowed to start de novo.
Plaintiffs’ case
5 In opposing the application, David Kariuki Mbugua the 2nd Plaintiff swore an affidavit filed before court on 10/11/2023. He stated that summons to enter appearance and the pleadings were served upon the 1st Defendant as per the affidavit sworn by a licenced process server and which he attached to the affidavit. That the 2nd and 3rd Defendants entered appearance and filed their pleadings. That the 1st Defendant did not file any document in response to the claim. It is stated that vide a letter dated 21/9/2021, counsel for the 2nd Defendant wrote a letter informing all parties that the matter had been moved to Kwale Court.
6 It is stated that the 1st Defendant was aware of the suit. That the pre-trial notice was also served upon the Defendants before the matter proceeded for hearing. It is further stated that the 1st Defendant cannot file an amended Defence when no defence was filed in the first instance. The deponent states that it will be prejudicial for the suit to start de novo whereas the Plaintiffs have been actively participating in the suit for the past 3 years. The court is urged to dismiss the 1st Defendants application as the same has been made in bad faith and is an abuse of the court process.
1st Defendant’s Rejoinder
7 The 1st Defendant/Applicant filed a further affidavit where he averred that he wishes to cross examine the process server Michael Kamau Njonjo who swore the affidavit of service alluded to by the Respondent. That the letter dated 21/9/2021 was sent out as a result of lack of service. The 1st Defendant avers that if the service was to be done intentionally then the Plaintiffs’ advocate would have been directed by the 1st Plaintiff since she is related to the 1st Defendant. That further there has been no interlocutory judgement entered as there has been no proper service. It is stated that the 1st Defendant filed a Statement of Defence dated 4/11/2020 and which was even served upon parties. The 1st Defendant maintains that he is entitled to a fair trial and the court should allow the application.
Submissions
8 The Notice of Motion was canvassed by way of written Submissions. The 1st Defendant’s submissions were filed on 15/2/2024 while the Plaintiffs submissions were filed on 22/3/24. The 2nd and 3rd Defendants did not participate in the application. The matter was then reserved for ruling.
Analysis & Determination
9 It is the 1st Defendant’s prayer that the proceedings of the court for 23/5/2022 be set aside. The reason advanced for making the said prayer is that the 1st Defendant was never aware of the hearing date as he had not been served with any pleadings as at that time. A perusal of the record for the particular date reveals that the Plaintiffs case proceeded with two witnesses testifying. Despite the allegation that the 1st Defendant was not aware of the date, the affidavit of service sworn by Michael Kamau Njonjo contests the 1st Defendant allegation. From the same and specifically at paragraph 4, it is revealed that the 1st Defendant was served at his residence through his servant and the said service was acknowledged. I am convinced that service of the pleadings was effected upon the 1st Defendant. I say so for the reason that a prayer has been made for amendment of the Defence initially filed by the 1st Defendant. The question that begs an answer is what would the 1st Defendant have been defending if not the plaint and which they got the chance to peruse and engage in. I am not convinced that the 1st Defendant was not served with the pleadings.
10 Having made the above observations, I however note that the main contention is the court proceedings of 23/5/2022. The 1st Defendant maintains that he was not served with the hearing notice to the same. On perusal of the record, I confirm that no affidavit of service is on record confirming that indeed the 1st Defendant was served with a hearing notice for the said date. The Plaintiffs on the other hand are adamant that the 1st Defendant was well aware of the hearing date but opted to ignore it. That he cannot claim to be unaware of what proceeded given that the matter has been before court for 3 years.
11 The 1st Defendant has in the further affidavit hinted to having interest in cross examining the process server on the alleged service of the hearing notice. Having perused the affidavit of service alluded to, I find that the same indicated service of the summons to enter appearance, plaint and other accompanying documents but not the hearing notice for the date in controversy. I believe it will be an exercise in futility to cross examine the said process server given that he has not alluded to service of the hearing notice. The scenario herein is similar to that in the case of Wachira Karani v Bildad Wachira [2016] eKLR, Mativo J (as he then was) stated thus;
“It is also important to mention that the integrity of the service having been questioned, it was necessary for the process server to be availed and shed light on the issue. Counsel for the Applicant raised the issue but never applied to cross-examine the process server. Similarly, counsel for the Respondent did not deem it fit to avail him if at all the service was indeed beyond reproach. The court was denied a golden opportunity to interrogate the issue further when the parties opted to dispose the application by way of written submissions.”
12 Bearing in mind that the Plaintiffs have not proved service, the issue that the court is now tasked with is determining whether the orders of stay of the proceedings and setting aside of the same should issue. From the time the application was instituted, it is noteworthy that the court has not proceeded with the further hearing of the suit. The prayers for stay of proceedings are thus overtaken by events. On the prayer for setting aside the proceedings of 23/5/2022, Order 51 Rule 15 of the Civil Procedure Rules caters for situations where a court proceeds ex parte in a suit. the same is to the effect that “The court may set aside an order made ex parte.”
13 The powers of the Court to set aside ex parte proceedings is discretionary and should be exercised judiciously. This position was affirmed in the case of Patel v E.A. Cargo Handling Services Limited [1974] E.A. 75 where it was stated:
“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules the principle obviously is that unless and until the court has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”
14 The certainty of service of the hearing date upon the 1st Defendant has not been confirmed. As long as the 1st Defendant filed a Defence it was entitled to a hearing notice, their knowledge of the existence of the suit notwithstanding. With this in mind and in the interest of justice, the 1st Defendant must be accorded an opportunity to ventilate his suit by fully participating in the same. The court agrees with the dictum in Patrick Omondi Opiyo T/A Dallas Pub v Shaban Keah & Another [2018] eKLR where their Lordships stated as follows:
“Service of summons accords the sued party the opportunity to be heard before any orders are issued against him/her. That is the essence of the rules of natural justice which all legal systems applaud. Where therefore judgment is entered against a party who has not been served and hence not been heard, such judgment will be set aside ex debito justitiae.”
15 While the above dictum refers to a judgement, the principle in my view applies to the circumstances of this case the proceedings having proceeded exparte. I’m further emboldened and persuaded by the Supreme Court of India dictum 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: -
“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
16 Arising from the foregoing it is imperative that the proceedings of 23/5/2022 are set aside. But what will this portend for the proposition to file witness statements and list and bundle of documents. Procedurally the 1st Defendant cannot proceed without a witness statement and his list of documents. If this is allowed then the Plaintiff would be entitled to respond thereto as they deem necessary for a fair hearing and the need to cover the emerging issues in the Plaintiffs oral testimony. There is no escape therefore to setting aside the proceedings and starting the hearing de novo. Accordingly, this takes care of the request to cross examine the Plaintiff since the matter must start denovo. What about the prayer for amendment of the 1st Defendants Defence?
17 Order 8 Rule 5 of the Civil Procedure Rules on amendment of pleadings provides:
(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.
(2) This rule shall not have effect in relation to a judgment or order.”
Section 100 of the Civil Procedure Act gives the court power to amend.
18 The power of the court to allow or refuse a party to amend pleadings is discretionary. The court in disallowing an application for amendment in Andrew Wabuyele Biketi versus Chinese Centre for The Promotion of Investment Development & Trade in Kenya Limited & 2 Others [2015] eKLR, stated as follows;
“…the court has discretion to order amendment at any stage before judgment. And amendment should be freely allowed provided it is not done mala fide, and does not occasion prejudice or injustice to the other party which cannot be compensated by award of costs”.
19 Further, in Daniel Ngetich & Anor versus K-Rep Bank Limited [2013] eKLR highlighting the requirements for exercising the discretion to grant or refuse amendment of pleadings the court stated that:
“…Normally the court should be liberal in granting leave to amend a pleading. But it must never grant leave for amendment if the court is of the opinion that the amendment would cause injustice or irreparable loss to the other side or if it is a device to abuse the process of the court. The power to allow amendments is intended to do justice; for, all amendments ought to be allowed which (a) do not work injustice to the other side, and (b) are necessary for the purpose of determining the real question in controversy between the parties; and all the authorities lay down precisely the same doctrine, that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. The court must aim at seeing that a multiplicity of suits is avoided, the real matters in controversy between the parties are clearly brought out, the other party is not prejudiced, the character of the suit or defence is not altered, and the object of the amendment is not to abuse the process of the court or unnecessarily delay justice or work a clear injustice”.
20 The main reason given by the applicant is that the delay in bringing the amendment is calculated at delaying the case and is made in bad faith. That the 1st Defendant deliberately delayed and or ignored in participating in the proceedings and blame lack of service. As court I would be keen on the substantive prejudice to be occasioned to the Plaintiffs’ case and which the respondent failed to demonstrate in opposing the amendment. I have perused the proposed amended Defence and I note it introduces a counterclaim. It is contended that the purchase price was made by the 1st Defendant. It is trite that a counterclaim is a separate suit but within the same proceedings. I do not see any prejudice to be occasioned as long as the Plaintiff is given a right of reply to the counterclaim.
21 I must add that there is some indolence on the part of counsel for the 1st Defendant which this court must punish. The 1st Defendant is also enjoined to have followed up on the case being sued as Defendant.
22 Accordingly, the court allows the application in the following terms: -
- The Honourable court be and is hereby pleased to set aside the proceedings before this Honourable court of 23rd May 2022 and the proceedings shall start denovo.
- The 1st Defendant shall pay thrown away costs of Kshs. 20,000 in view of the above orders within 30 days of this order.
- The Court re-opens the pretrial protocols and hereby enlarge time to allow the 1st Defendant file witness statements and list and bundle of documents within 30 days of the date of this order.
- The amended Defence shall be deemed as duly filed on payment of the requisite fees.
- The Plaintiff shall have corresponding leave to respond to the Counterclaim appropriately and the documents served in (3) above within 14 days from the date of service.
- The costs of this application will abide the outcome of these proceedings.
Orders accordingly.
Ruling dated signed and delivered this 21st day of June 2024.
Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:
Mr. Omondi for the Plaintiff
Ms. Mwikali Holding Brief for Mr. Murango for the 1st Defendant
Ms. Oseko for the 2nd Defendant
Mr. Daniel Disii - Court Assistant.