Magata Co-operative Society have come to this court by way of an application seeking orders that this Honorable Court be pleased to set aside and/or vary its Judgment and/or order issued on 1st October, 2019 and upon issuance of the order, this honorable Court be pleased to grant leave to the Defendants/Applicants to file their defence to the suit. That the costs of the application be provided for. The application is based on grounds that the Applicants are the original members of Wamagata Squarters Self Help group which was registered under the Ministry of the then Gender, Children and Social Development on 10th April 1997 under Certificate No. 291976. That initially the group members were staying as squatters on land belonging to Wamagata (deceased) which was sold to teachers and after being evicted from that land they settled on the suit land which belonged to the Kenya Government of Kenya. They settled on the land as squatters. In the year 2001 the members of the group were issued with allotment letters by the Government of Kenya and applying through the Plot Allocation Committee i.e. Plot No. Nakuru Municipality Block XVI (Unsurveyed). When the members of Wamagata Squartters Self Help Group started following title deeds for the portions allocated to them is when the 1st defendant Margaret Wairimu and one Samwel Mithano started interfering with the Defendants resulting in the 1st Defendant/Applicant, 2nd Defendant/Applicant and 3rd Defendant/Applicant suing the 1st Plaintiff/Respondent and another in Nakuru HCC 141 of 2005 in which the court issued restraining orders against the 1st Plaintiff/Respondent and Another now not in court.
In 2013 some of the members of Wamagata Self Help Group were issued with allotment letters/title deeds after the area was surveyed by the Government officers.
Later the Defendants were advised to form a Co-operative Society so that they could get assistance from None Government Organizations to develop the area and they formed a Co-operative Society and registered on 1st September 2014. The land where the Defendants settled is fully occupied by the members some of whom have built permanent houses and others still in semi-permanent houses but each homestead has electricity and water through the support of the NGO' s.
The matter giving rise to the Judgment proceeded unopposed without the participation of the Applicants herein. The aforesaid nonappearance arose due to non-service of the pleadings upon the Applicants hence non filing of their defences.
The Applicants/Defendants only learned that there was a case against them when they wanted to follow titles for the remaining members and discovered that their file in the lands office had been tampered with.
The Applicants by dint of non-service were condemned unheard, a clear violation of the rules of natural justice which the Honorable Court should not countenance. The Applicants stand to suffer great loss and damages if the Honorable Court does not grant the orders sought. The Applicants herein believe that they have a strong defence to the case by the Plaintiffs and do pray that this Honorable Court grants them the opportunity to be heard. The supporting affidavit of Ndungu Nderitu Munyuri reiterates the grounds of the application. The main issue being that the applicants were not served with the summons to enter appearance.
The applicant submits that she has satisfied the court that this court should set aside the judgment delivered on 1st October, 201.9 and grant the and 2nd defendants/Applicants leave to file their defence and that the application is brought in good faith and in the interests of justice and thus should be allowed as prayed.
The applicant relies on Order 10 Rule 11 of the Civil Procedure Rules provides that an ex-parte judgment in default of appearance or defence may be set aside. That the decision whether or not to set aside an ex parte judgment is discretionary. They contend that in all instances where a court is clothed with discretion, the discretion donated under the above provision is to be exercised judiciously and in deserving cases only, It is to be used to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not meant to assist person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.
The applicant submits that the matter giving rise to the Judgment proceeded unopposed without the participation of the Applicants herein. The aforesaid non -appearance arose due to non-service of the pleadings upon the Applicants hence non-filing of their defence. The Applicants/ Defendants only learned that there was a case against them when they wanted to follow titles for the remaining members and discovered that their file in the lands office had been tampered with. That the Applicants by dint of non-service were condemned unheard, a clear violation of the rules of natural justice which the Honorable Court should not countenance. The Applicants therefore stand to suffer great loss and damages if the Honorable Court does not grant the orders sought since they have a strong defence to the case by the Plaintiffs and do pray that this Honorable Court grants them the opportunity to be heard.
The defendant contends that they did not participate in the matter because they were never served with any court documents and that is not contested because the Respondents did not cause the process server who served the summons pleadings to swear the Replying Affidavit as the main contention was whether the applicants were served.
The defendant relies on the decision in Nakuru ELC NO. 248 OF 2016 Gathogo Kuria -vs- Peter Kariuki Mugo where it was held that:
“The law is now well settled that in an application for setting aside ex parte judgement, he Court must consider not only the reasons why the defence was not filed or for that natter 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 Respondent on the other hand alleges that the Applicants/ Defendants were served with the Plaint and that all other document to related with this case were served upon the Defendants/Applicants, they wholly relied on the affidavit of service sworn by to process servers Ronald Njuguna And Arthur Kimamo whose affidavits indicates that the 1st Defendant was served at 10:30 pm and they did not append their signatures. The Civil Procedure rules require that service should be effected within reasonable timeThe respondent submits that the application is frivolous, vexatious and an abuse of court process. That the plaintiff served the defendants/ applicants with summons to enter appearance and all pleadings but they did not enter an appearance nor file a defence.
The suit proceeded to hearing where the Plaintiffs/ respondent testified and produced their evidence. The defendants/ applicants' case was closed after they failed to appear. Judgment was subsequently entered on 1st October, 2019 in favour of the plaintiffs/ Respondent. The Defendants / Applicants filed this present application seeking that judgment be set aside.
The Defendants/ applicants were also served with a hearing notice when then suit came up for hearing, the plaintiffs / respondents annexed the hearing notice as annexure marked JWM- 4 in their Replying affidavit. It is plaintiffs submission that the defendants/ applicants have not adduced sufficient evidence to explain their failure to enter appearance and file a defence to the Honorable court to warrant the setting aside of the judgment.
The respondents contend that this application is an abuse of the court process as it is a ploy to waste judicious time and obstruct justice. The defendants/ applicants were aware of the proceedings having been properly served with a hearing notice but they chose not to participate in the suit.
The respondents rely on Shah v Mbogo & Another (1967) E.A 116, where the Court of Appeal stated that the discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error but not to assist a party w110 has deliberately sought (whether by evasion or otherwise) to obstruct or delay the course of justice.
That in light of the above, they submit that the defendants/ applicants failure to enter an appearance or file a defence was not as a result of an inadvertence or excusable error but a refusal to defend the suit.
The respondents argue that the applicants are not entitled-to the orders sought— as they have approached the court after an unreasonable delay. The defendants/ applicants have not adequately explained the reasons for the inordinate delay. This suit was heard and determined on 1st October 2019 but the applicants have only recently brought the application seeking to set aside the judgment after an unexplained delay of approximately five years. That the application is an afterthought aimed at frustrating the Plaintiffs/ respondents from enjoying the fruits of the judgment delivered on 1st October, 2019.
They are guided by the Civil Procedure Act section IA provides for the efficient disposal of the business of the Court and the efficient use of the available judicial and administrative resources . It is thus clear that the application instituted by the defendants/app these principles as it seeks to waste judicious time and resources.
The respondent submits that if the application will be allowed the plaintiffs/ respondents stand to suffer irreparable loss and damages. The members of the plaintiffs/respondent group have been landless waiting for allocation of their individual parcel of land but they have been unable to obtain the same as the defendants/ applicants have remained in occupation of the suit parcel despite being ordered to vacate the same vide ruling dated 20th January, 2016 and judgment dated 1st October 2019.
According to the plaintiff, they will suffer prejudice if the orders sought are granted because the members of the plaintiffs/ respondents will be denied the right to enjoy the fruits of the judgment.
The respondent relies on the case of Lois Holdings Limited v Ndiwa Tamboi & 184 others; Co-operative Society (Proposed 2nd Defendant) [20211 eKLR where the court considered the decision in Patel v East Africa Cargo Handling Services Ltd [19741 E." 75 where the principles for the setting aside of a judgment by the courts were laid out when William Duffus, P. stated;
"The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits In this respect defence on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan, J. put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial ...”
The plaintiff submits that the defendants/ applicants draft defence does not raise triable issue to warrant the above discretion. The plaintiff cites the case of James Kanyita Nderitu & another v Marios Philotas Ghika & another (2016) eKLR, where the Court of Appeal set out the criteria to be adopted when exercising jurisdiction to set aside a regular and an irregular ex-parte judgment as follows:
"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 ill 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 reason for failure of the defendant to file his Memorandums 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 others. “
That it is in the interest of justice that this application be dismissed with cost to the plaintiffs/ respondents.On whether the honourable court should grant leave to the defendants to file their defence to the suit.
The plaintiff further submits that the draft defence does not raise any triable issues raising a prima facie case that would invite court to re- open the proceedings. The plaintiff relies on the case of Chemwolo & another vs Kubendi (1986) KLR where the court of Appeal held that:-
"The concern of the court is to do justice to the parties and the court would not impose conditions 011 itself to fetter the discretion. However, where a regular judgment has been entered, the court will not set it aside unless it is satisfied that there are triable issues which raise a prima facie defence which should go for trial."
The plaintiff urges the court to find that the draft defense does not raise any triable issues to fetter the court discretion to set aside the judgment and submits that the application is untenable, an abuse of the court process and does not meet the threshold for the grant of the orders sought and should be dismissed with costs.
This court has considered the application, replying affidavit, rival submissions and do find that the evidence on record of service of the plaint, verifying affidavit shows that there is a shadow of doubt that the same was served because it indicates that the plaint and verifying affidavit and other documents were served at 10.30 PM. Moreover, the summons to enter appearance were not issued by the court and therefore none was served.
It is trite law that where there is no evidence of service of the plaint, summons to enter appearance, the court has no discretion to exercise but it has to set aside the judgment.
In this matter, I do find that the proceedings leading to the judgment were irregular and that the defendants were not served and therefore the court is inclined to set aside the judgment ex debito justiciae. This court finds that the right to be heard is cardinal and cannot be taken away without a reason founded in law such as failure to honour summons to enter appearance and file pleadings. The applicant has demonstrated that he was not served with the plaint and the summons to enter appearance. The application is found merited and is allowed. The Judgment of the court entered on 1st October, 2019 is set aside. Leave is granted to the Defendants/Applicants to file their defence to the suit. That the costs of the application be in the cause.
In 2013 some of the members of Wamagata Self Help Group were issued with allotment letters/title deeds after the area was surveyed by the Government officers.
Later the Defendants were advised to form a Co-operative Society so that they could get assistance from None Government Organizations to develop the area and they formed a Co-operative Society and registered on 1st September 2014. The land where the Defendants settled is fully occupied by the members some of whom have built permanent houses and others still in semi-permanent houses but each homestead has electricity and water through the support of the NGO' s.
The matter giving rise to the Judgment proceeded unopposed without the participation of the Applicants herein. The aforesaid nonappearance arose due to non-service of the pleadings upon the Applicants hence non filing of their defences.
The Applicants/Defendants only learned that there was a case against them when they wanted to follow titles for the remaining members and discovered that their file in the lands office had been tampered with.
The Applicants by dint of non-service were condemned unheard, a clear violation of the rules of natural justice which the Honorable Court should not countenance. The Applicants stand to suffer great loss and damages if the Honorable Court does not grant the orders sought. The Applicants herein believe that they have a strong defence to the case by the Plaintiffs and do pray that this Honorable Court grants them the opportunity to be heard. The supporting affidavit of Ndungu Nderitu Munyuri reiterates the grounds of the application. The main issue being that the applicants were not served with the summons to enter appearance.
The applicant submits that she has satisfied the court that this court should set aside the judgment delivered on 1st October, 201.9 and grant the and 2nd defendants/Applicants leave to file their defence and that the application is brought in good faith and in the interests of justice and thus should be allowed as prayed.
The applicant relies on Order 10 Rule 11 of the Civil Procedure Rules provides that an ex-parte judgment in default of appearance or defence may be set aside. That the decision whether or not to set aside an ex parte judgment is discretionary. They contend that in all instances where a court is clothed with discretion, the discretion donated under the above provision is to be exercised judiciously and in deserving cases only, It is to be used to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not meant to assist person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.
The applicant submits that the matter giving rise to the Judgment proceeded unopposed without the participation of the Applicants herein. The aforesaid non -appearance arose due to non-service of the pleadings upon the Applicants hence non-filing of their defence. The Applicants/ Defendants only learned that there was a case against them when they wanted to follow titles for the remaining members and discovered that their file in the lands office had been tampered with. That the Applicants by dint of non-service were condemned unheard, a clear violation of the rules of natural justice which the Honorable Court should not countenance. The Applicants therefore stand to suffer great loss and damages if the Honorable Court does not grant the orders sought since they have a strong defence to the case by the Plaintiffs and do pray that this Honorable Court grants them the opportunity to be heard.
The defendant contends that they did not participate in the matter because they were never served with any court documents and that is not contested because the Respondents did not cause the process server who served the summons pleadings to swear the Replying Affidavit as the main contention was whether the applicants were served.
The defendant relies on the decision in Nakuru ELC NO. 248 OF 2016 Gathogo Kuria -vs- Peter Kariuki Mugo where it was held that:
“The law is now well settled that in an application for setting aside ex parte judgement, he Court must consider not only the reasons why the defence was not filed or for that natter 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 Respondent on the other hand alleges that the Applicants/ Defendants were served with the Plaint and that all other document to related with this case were served upon the Defendants/Applicants, they wholly relied on the affidavit of service sworn by to process servers Ronald Njuguna And Arthur Kimamo whose affidavits indicates that the 1st Defendant was served at 10:30 pm and they did not append their signatures. The Civil Procedure rules require that service should be effected within reasonable timeThe respondent submits that the application is frivolous, vexatious and an abuse of court process. That the plaintiff served the defendants/ applicants with summons to enter appearance and all pleadings but they did not enter an appearance nor file a defence.
The suit proceeded to hearing where the Plaintiffs/ respondent testified and produced their evidence. The defendants/ applicants' case was closed after they failed to appear. Judgment was subsequently entered on 1st October, 2019 in favour of the plaintiffs/ Respondent. The Defendants / Applicants filed this present application seeking that judgment be set aside.
The Defendants/ applicants were also served with a hearing notice when then suit came up for hearing, the plaintiffs / respondents annexed the hearing notice as annexure marked JWM- 4 in their Replying affidavit. It is plaintiffs submission that the defendants/ applicants have not adduced sufficient evidence to explain their failure to enter appearance and file a defence to the Honorable court to warrant the setting aside of the judgment.
The respondents contend that this application is an abuse of the court process as it is a ploy to waste judicious time and obstruct justice. The defendants/ applicants were aware of the proceedings having been properly served with a hearing notice but they chose not to participate in the suit.
The respondents rely on Shah v Mbogo & Another (1967) E.A 116, where the Court of Appeal stated that the discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error but not to assist a party w110 has deliberately sought (whether by evasion or otherwise) to obstruct or delay the course of justice.
That in light of the above, they submit that the defendants/ applicants failure to enter an appearance or file a defence was not as a result of an inadvertence or excusable error but a refusal to defend the suit.
The respondents argue that the applicants are not entitled-to the orders sought— as they have approached the court after an unreasonable delay. The defendants/ applicants have not adequately explained the reasons for the inordinate delay. This suit was heard and determined on 1st October 2019 but the applicants have only recently brought the application seeking to set aside the judgment after an unexplained delay of approximately five years. That the application is an afterthought aimed at frustrating the Plaintiffs/ respondents from enjoying the fruits of the judgment delivered on 1st October, 2019.
They are guided by the Civil Procedure Act section IA provides for the efficient disposal of the business of the Court and the efficient use of the available judicial and administrative resources . It is thus clear that the application instituted by the defendants/app these principles as it seeks to waste judicious time and resources.
The respondent submits that if the application will be allowed the plaintiffs/ respondents stand to suffer irreparable loss and damages. The members of the plaintiffs/respondent group have been landless waiting for allocation of their individual parcel of land but they have been unable to obtain the same as the defendants/ applicants have remained in occupation of the suit parcel despite being ordered to vacate the same vide ruling dated 20th January, 2016 and judgment dated 1st October 2019.
According to the plaintiff, they will suffer prejudice if the orders sought are granted because the members of the plaintiffs/ respondents will be denied the right to enjoy the fruits of the judgment.
The respondent relies on the case of Lois Holdings Limited v Ndiwa Tamboi & 184 others; Co-operative Society (Proposed 2nd Defendant) [20211 eKLR where the court considered the decision in Patel v East Africa Cargo Handling Services Ltd [19741 E." 75 where the principles for the setting aside of a judgment by the courts were laid out when William Duffus, P. stated;
"The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits In this respect defence on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan, J. put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial ...”
The plaintiff submits that the defendants/ applicants draft defence does not raise triable issue to warrant the above discretion. The plaintiff cites the case of James Kanyita Nderitu & another v Marios Philotas Ghika & another (2016) eKLR, where the Court of Appeal set out the criteria to be adopted when exercising jurisdiction to set aside a regular and an irregular ex-parte judgment as follows:
"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 ill 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 reason for failure of the defendant to file his Memorandums 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 others. “
That it is in the interest of justice that this application be dismissed with cost to the plaintiffs/ respondents.On whether the honourable court should grant leave to the defendants to file their defence to the suit.
The plaintiff further submits that the draft defence does not raise any triable issues raising a prima facie case that would invite court to re- open the proceedings. The plaintiff relies on the case of Chemwolo & another vs Kubendi (1986) KLR where the court of Appeal held that:-
"The concern of the court is to do justice to the parties and the court would not impose conditions 011 itself to fetter the discretion. However, where a regular judgment has been entered, the court will not set it aside unless it is satisfied that there are triable issues which raise a prima facie defence which should go for trial."
The plaintiff urges the court to find that the draft defense does not raise any triable issues to fetter the court discretion to set aside the judgment and submits that the application is untenable, an abuse of the court process and does not meet the threshold for the grant of the orders sought and should be dismissed with costs.
This court has considered the application, replying affidavit, rival submissions and do find that the evidence on record of service of the plaint, verifying affidavit shows that there is a shadow of doubt that the same was served because it indicates that the plaint and verifying affidavit and other documents were served at 10.30 PM. Moreover, the summons to enter appearance were not issued by the court and therefore none was served.
It is trite law that where there is no evidence of service of the plaint, summons to enter appearance, the court has no discretion to exercise but it has to set aside the judgment.
In this matter, I do find that the proceedings leading to the judgment were irregular and that the defendants were not served and therefore the court is inclined to set aside the judgment ex debito justiciae. This court finds that the right to be heard is cardinal and cannot be taken away without a reason founded in law such as failure to honour summons to enter appearance and file pleadings. The applicant has demonstrated that he was not served with the plaint and the summons to enter appearance. The application is found merited and is allowed. The Judgment of the court entered on 1st October, 2019 is set aside. Leave is granted to the Defendants/Applicants to file their defence to the suit. That the costs of the application be in the cause.