BRIEF FACTS
The Defendants/Applicants filed the instant application dated 2nd August, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT this honourable court be pleased to set aside and/or vary the judgment and/or decree of this honourable court issued on 30th June, 2022.
4. THAT upon issuance of prayer (c) above, this honourable court be pleased to grant leave to the Defendants/Applicants to file their defense to the suit.
5. THAT cost of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of PETER KARIUKI MUGO the 1st Defendant/Applicant herein sworn on 2nd August, 2024. It was stated that together with the 2nd Defendant/Applicant they are the registered owners of the suit properties herein BAHATI/KABATINI BLOCK 1/17270 (NDEFO) and BAHATI/KABATINI BLOCK 1/17271 (NDEFO) respectively.
That on 26th July, 2024 the 2nd Applicant was served with an application dated 22nd July, 2024 that sought to have him vacate from the BAHATI/KABATINI BLOCK 1/17270. He stated that he was informed by the process server that the title had been cancelled yet he had not participated in the matter leading to its cancellation. He added that from the court records, the matter proceeded ex parte since the Applicants had not entered appearance nor filed their defence.
It was further stated that they were never served with any court documents in respect of the matter despite the various affidavits on record. That the process server never indicated that he had accepted service of the same. He added that as advised by his advocate, it was necessary to cross examine the process server. He denied ever ignoring to defend the matter yet he knew that the suit property was their home land and source of living.
The 1st Applicant stated that they have a strong defence noting that neither the Plaintiff/Respondent nor the deceased owner have ever occupied nor lived in the suit land. In conclusion, the 1st Applicant urged the court to allow the instant application as prayed.
Response
The Plaintiff/Respondent filed his Replying Affidavit dated 24th September, 2024. He averred that the Applicants application was brought in bad faith with the intention of denying him the right to enjoy the fruits of his judgment. He further averred that he had instituted the present suit on 11th July, 2016 and judgment entered on 30th June, 2022 cancelling the Applicants titles.
It was his contention that the Applicants were served with the necessary court documents on 26th July, 2024 where he acknowledged receipt. That the Applicants entered appearance on 2nd August, 2024 and filed the present application. He averred that the Applicants were served with the necessary pleadings at every stage prior to the judgment delivered on 30th June, 2023. That the matter was mentioned several times before hearing but the Applicants never entered appearance leading to the same being heard ex-parte on 15th February, 2022. He averred that the Applicants have not come to court with clean hands and have also failed to give a plausible explanation for failure to put in their defence. In conclusion he urged the court to dismiss the application.
Submissions
The Plaintiff/Respondent filed his submissions dated 14th October, 2024 on 17th October, 2024. They identified one issue for determination, whether the court should set aside the judgment delivered on 30th June, 2022 and grant the 1st and 2nd Defendants/Applicants leave to file their defence. They relied on Order 10 Rule 11 of the Civil Procedure Rules and the case of David Kiptanui Yego & 134 Others V Benjamin Rono & 3 Others [2021] eKLR. It was their submission that the matter came up several times for mention before hearing and the Applicants did not enter appearance. They further submitted that the court being satisfied that the matter was ready for hearing, heard the same ex-parte on 15th February, 2022. They submitted that the judgment entered on 30th June, 2022 was regular.
They went on to submit that after judgment was entered, the Applicants field the present application 8 years after the matter had been filed. They added that the Applicants failed to give sufficient reason as to why they failed to move the court earlier. They relied on the case of Shah V Mbogo (1967) EA 166, and submitted that the Applicants will not suffer any prejudice since judgment has been entered in the Respondent’s favour. It was the Respondent’s submission that he had been denied enjoyment of his inheritance being the suit property since 2016.
In conclusion, they submitted that re-opening of the case would be a waste of the court’s time and also deny the Respondent from enjoying the fruits of his judgment. He urged the court to dismiss the application with costs to the Respondent.
Analysis and Determination
This court has considered the application and is of the view that the main issue for determination is whether the Applicants are deserving of the review orders sought for. The court values the legal adage that the right to be heard is sacrosanct and should not just be taken away without good reasons.
It has been held time and again that the decision whether or not to set aside ex parte judgment is discretionary and it is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. This was held in Shah vs. Mbogo & Another [1967] EA 116.
In this case the grounds upon which the application to set aside the judgment was that the Applicants were never notified of the stages of proceedings before the trial court. That the came to know about the matter when they were served with an application to vacate the premises.
As was held by the Court of Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173:
“In an application for setting aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgement is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not considered at all and indeed could not be considered without the appellant’s input..... What the Trial Court should have done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.”
In Pindoria Construction Ltd vs. Ironmongers Sanytaryware Civil Appeal No. 16 of 1976 it was held that:
“It is a common ground that it is a matter for discretion whether or not to set aside a judgment under rule 8 of Order 9B of the Civil Procedure Rules. It is also well settled that the Court of Appeal will not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice… The appellant was not altogether free from blame. He could have tried harder to be present at the date of hearing. He delayed considerably in filing his application to set aside the ex parte judgement. The trial Judge’s exasperation at his behaviour was understandable. Although he should not have been precluded from defending the claim against him he has to be penalised to some extent in view of his somewhat dilatory actions.”
The first question for determination is whether the judgment was procedurally entered.
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:
“[T]here 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.”
That was the position adopted by the Court of Appeal in Onjula Enterprises Ltd vs. Sumaria [1986] KLR 651, where it was held that:
“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved. See London Association for the Protection of Trade & Another vs. Greenlands Limited [1916] 2 AC 15 at 38.”
This position is supported by the holding of Ojwang, J (as he then was) in Haile Selassie Avenue Development Co. Limited v Josephat Muriithi & 10 others [2004] eKLR where he held that:
“The rules of procedure which regulate the trial process are intended to serve the constructive purpose of expediting trials, and facilitating judicial decision-making with finality. These rules cannot be said to be oppressive to parties, or that they necessarily wreak injustice. On the facts of this particular case, the Defendants ought to have complied with these rules of procedure.”
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:-
“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
It is this court’s view that the Applicants claim that they did not participate in the matter since they were never served with any court documents is not contested because the respondent did not cause the process server who served the summons and the pleadings to swear the replying affidavit as the main contention was whether the applicants were served. The respondent Gathogo Kuria relied on the information of the advocate that the summons to enter appearance were served. His advocate relied on the affidavit of service sworn by Bonface P Omwoche which did not annex the summons that were issued by the court.
I do find the application merited and is allowed thus:-
1. The judgment and/or decree of this honourable court issued on 30th June, 2022 is set aside
2. The Defendants/Applicants to file their defense to the suit within 15 days.
3. Mention 18th December 2024
4. Matter to be allocated a hearing date in March 2025.
THAT cost of this application be in the cause.
It is so ordered.
The Defendants/Applicants filed the instant application dated 2nd August, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT this honourable court be pleased to set aside and/or vary the judgment and/or decree of this honourable court issued on 30th June, 2022.
4. THAT upon issuance of prayer (c) above, this honourable court be pleased to grant leave to the Defendants/Applicants to file their defense to the suit.
5. THAT cost of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of PETER KARIUKI MUGO the 1st Defendant/Applicant herein sworn on 2nd August, 2024. It was stated that together with the 2nd Defendant/Applicant they are the registered owners of the suit properties herein BAHATI/KABATINI BLOCK 1/17270 (NDEFO) and BAHATI/KABATINI BLOCK 1/17271 (NDEFO) respectively.
That on 26th July, 2024 the 2nd Applicant was served with an application dated 22nd July, 2024 that sought to have him vacate from the BAHATI/KABATINI BLOCK 1/17270. He stated that he was informed by the process server that the title had been cancelled yet he had not participated in the matter leading to its cancellation. He added that from the court records, the matter proceeded ex parte since the Applicants had not entered appearance nor filed their defence.
It was further stated that they were never served with any court documents in respect of the matter despite the various affidavits on record. That the process server never indicated that he had accepted service of the same. He added that as advised by his advocate, it was necessary to cross examine the process server. He denied ever ignoring to defend the matter yet he knew that the suit property was their home land and source of living.
The 1st Applicant stated that they have a strong defence noting that neither the Plaintiff/Respondent nor the deceased owner have ever occupied nor lived in the suit land. In conclusion, the 1st Applicant urged the court to allow the instant application as prayed.
Response
The Plaintiff/Respondent filed his Replying Affidavit dated 24th September, 2024. He averred that the Applicants application was brought in bad faith with the intention of denying him the right to enjoy the fruits of his judgment. He further averred that he had instituted the present suit on 11th July, 2016 and judgment entered on 30th June, 2022 cancelling the Applicants titles.
It was his contention that the Applicants were served with the necessary court documents on 26th July, 2024 where he acknowledged receipt. That the Applicants entered appearance on 2nd August, 2024 and filed the present application. He averred that the Applicants were served with the necessary pleadings at every stage prior to the judgment delivered on 30th June, 2023. That the matter was mentioned several times before hearing but the Applicants never entered appearance leading to the same being heard ex-parte on 15th February, 2022. He averred that the Applicants have not come to court with clean hands and have also failed to give a plausible explanation for failure to put in their defence. In conclusion he urged the court to dismiss the application.
Submissions
The Plaintiff/Respondent filed his submissions dated 14th October, 2024 on 17th October, 2024. They identified one issue for determination, whether the court should set aside the judgment delivered on 30th June, 2022 and grant the 1st and 2nd Defendants/Applicants leave to file their defence. They relied on Order 10 Rule 11 of the Civil Procedure Rules and the case of David Kiptanui Yego & 134 Others V Benjamin Rono & 3 Others [2021] eKLR. It was their submission that the matter came up several times for mention before hearing and the Applicants did not enter appearance. They further submitted that the court being satisfied that the matter was ready for hearing, heard the same ex-parte on 15th February, 2022. They submitted that the judgment entered on 30th June, 2022 was regular.
They went on to submit that after judgment was entered, the Applicants field the present application 8 years after the matter had been filed. They added that the Applicants failed to give sufficient reason as to why they failed to move the court earlier. They relied on the case of Shah V Mbogo (1967) EA 166, and submitted that the Applicants will not suffer any prejudice since judgment has been entered in the Respondent’s favour. It was the Respondent’s submission that he had been denied enjoyment of his inheritance being the suit property since 2016.
In conclusion, they submitted that re-opening of the case would be a waste of the court’s time and also deny the Respondent from enjoying the fruits of his judgment. He urged the court to dismiss the application with costs to the Respondent.
Analysis and Determination
This court has considered the application and is of the view that the main issue for determination is whether the Applicants are deserving of the review orders sought for. The court values the legal adage that the right to be heard is sacrosanct and should not just be taken away without good reasons.
It has been held time and again that the decision whether or not to set aside ex parte judgment is discretionary and it is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. This was held in Shah vs. Mbogo & Another [1967] EA 116.
In this case the grounds upon which the application to set aside the judgment was that the Applicants were never notified of the stages of proceedings before the trial court. That the came to know about the matter when they were served with an application to vacate the premises.
As was held by the Court of Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173:
“In an application for setting aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgement is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not considered at all and indeed could not be considered without the appellant’s input..... What the Trial Court should have done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.”
In Pindoria Construction Ltd vs. Ironmongers Sanytaryware Civil Appeal No. 16 of 1976 it was held that:
“It is a common ground that it is a matter for discretion whether or not to set aside a judgment under rule 8 of Order 9B of the Civil Procedure Rules. It is also well settled that the Court of Appeal will not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice… The appellant was not altogether free from blame. He could have tried harder to be present at the date of hearing. He delayed considerably in filing his application to set aside the ex parte judgement. The trial Judge’s exasperation at his behaviour was understandable. Although he should not have been precluded from defending the claim against him he has to be penalised to some extent in view of his somewhat dilatory actions.”
The first question for determination is whether the judgment was procedurally entered.
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:
“[T]here 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.”
That was the position adopted by the Court of Appeal in Onjula Enterprises Ltd vs. Sumaria [1986] KLR 651, where it was held that:
“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved. See London Association for the Protection of Trade & Another vs. Greenlands Limited [1916] 2 AC 15 at 38.”
This position is supported by the holding of Ojwang, J (as he then was) in Haile Selassie Avenue Development Co. Limited v Josephat Muriithi & 10 others [2004] eKLR where he held that:
“The rules of procedure which regulate the trial process are intended to serve the constructive purpose of expediting trials, and facilitating judicial decision-making with finality. These rules cannot be said to be oppressive to parties, or that they necessarily wreak injustice. On the facts of this particular case, the Defendants ought to have complied with these rules of procedure.”
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:-
“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
It is this court’s view that the Applicants claim that they did not participate in the matter since they were never served with any court documents is not contested because the respondent did not cause the process server who served the summons and the pleadings to swear the replying affidavit as the main contention was whether the applicants were served. The respondent Gathogo Kuria relied on the information of the advocate that the summons to enter appearance were served. His advocate relied on the affidavit of service sworn by Bonface P Omwoche which did not annex the summons that were issued by the court.
I do find the application merited and is allowed thus:-
1. The judgment and/or decree of this honourable court issued on 30th June, 2022 is set aside
2. The Defendants/Applicants to file their defense to the suit within 15 days.
3. Mention 18th December 2024
4. Matter to be allocated a hearing date in March 2025.
THAT cost of this application be in the cause.
It is so ordered.