1. Before the court is the application dated 30th January, 2024, which is opposed. The application is an appeal against the decision of the trial court disallowing the appellant’s application to set aside the ex parte judgment entered on 30th October, 2023.
2. The court notes that there is no objection to prayer 2 of the application and the same is therefore allowed. Consequently, the Firm of Pharis & Co. Advocates is hereby granted leave to come on record for the appellant.
3. The respondent raised a preliminary objection to the appeal through the Notice of Preliminary Objection dated 14th February, 2024. As the preliminary objection goes to the root of this appeal, it is incumbent on this court to dispense with it before delving into the substantive appeal.
4. The respondent argues that the appeal is incurably defective in law having been filed out of time and without leave of this honourable court. The preliminary objection is premised on the provisions of Section 79G of the Civil Procedure Act which dictates that appeals from subordinate courts to the High Court shall be filed within 30 days from the date of the decree or order appealed against.
5. This Court notes that section 79G has a saving limb in which the court may admit an appeal out of time if the appellant is able to satisfy the court that there are good reasons for not filing the appeal in time.
6. It is not in dispute that the memorandum of appeal herein is dated 8th November, 2023. From the CTS the same was filed on 15th November, 2023. Contrary to the respondent’s submissions, the said memorandum of appeal seeks to appeal against the ruling dated 30th October, 2023 and not against the judgment or decree of the court which was issued on 16th August, 2022. As stated, the import of the ruling is that the Small Claims Court disallowed an application to set aside the ex parte judgment.
7. The inadvertent error in reference of dates in the pleadings by the applicant does not render the application defective. It is therefore my finding that the period between 30th October, 2023 and 15th November, 2023 is within the time provided for under section 79G of the Civil Procedure Act. For that reason, the preliminary objection fails.
8. As to whether the ruling of the Small Claims Court should be set aside, I note that the main reason for this is the dispute as to whether there was proper service. The applicant has asked the court to set aside the judgment and decree of the Small Claims Court but does not provide any basis for setting aside save that they have an arguable appeal. They have not addressed themselves to the issue of default of appearance.
9. From the respondent’s replying affidavit, the judgment of 16th August, 2022 not 22nd August, 2022 was entered after the court had satisfied itself that there was proper service.
10. I have perused the ruling of 30th October, 2023 which the applicant seeks to set aside. The Learned Adjudicator considered the evidence before her by way of the affidavits of service filed on 21st July, 2022 and 3rd August, 2022. From the ruling, the respondent did not rebut these affidavits of service.
11. This court has been given no basis whatsoever to interfere with the factual finding by the Learned Adjudicator that service was properly effected on the applicant and that being the case, judgment was regular and lawful. The court further notes that the mere denial by the applicant of the claim taken against invoices and delivery notes that were produced by the respondent was evidence that the response by the appellant raised no triable issues.
12. Against this background, I have looked at the memorandum of appeal and I am not satisfied that it raises any triable issues. In any case, the justification given by the applicant for seeking stay of execution premised on the age of the applicant and their financial situation is not a ground for appeal. Instead, the applicant ought to reach out to the respondent and seek for accommodation.
13. It is therefore my finding that the application by the appellant provides no evidence or justification upon which this court should interfere with the decision of the Learned Adjudicator.
14. Having declined the prayer for setting aside the judgment, the prayer for stay of execution of the judgment and decree also fails.
Disposition
15. The application for setting aside of the judgment and decree dated 16th August 2022 and intended appeal are dismissed with costs to the respondent.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 15TH DAY OF MAY, 2024.
F. MUGAMBI
JUDGE