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JudgmentMutunga Wambua VS Joseph Lungahi Isalano16 min read

Mutunga Wambua VS Joseph Lungahi Isalano

High Court at Milimani High Court · · Andayi W.F.

(Being an Appeal from the Ruling delivered on the 20th September 2022 by the Honourable Kagoni E. M. (Mr.) (Principal Magistrate) in Milimani Magistrates Courts CMCC No. 7232 of 2017)

  1. The appeal before court through a memorandum of appeal dated 11/10/2022 is for orders that the appeal be allowed, the ruling delivered on 20/9/2022 in Milimani Magistrates Civil Suit No. 7232 of 2017 be set aside and the judgment entered on 21/10/2020 and all consequential orders made thereto be set aside and the appellant be granted unconditional leave to defend the suit and the costs of the appeal be awarded to the appellant.
  2. The impugned ruling dismissed an application dated 22/11/2021 by the appellant herein seeking to set aside a regular default judgment entered on 21/10/2020 for the respondent herein against the appellant. In the said ruling the trial court found that the appellant had been duly served with summons to enter appearance but failed to enter appearance and file defence in time, secondly, that the appellant had been indolent in not pursuing his insurers to find out whether they had indeed appointed an advocate to act for him in the matter as promised to him after forwarding the summons to his insurance brokers and thirdly that the draft defence annexed to the appellant’s application failed to show any triable issues because the same had responded to the plaint filed by the respondent in the suit instead of responding to the amended plaint. 
  3. The appellant was dissatisfied with that decision and has filed the present appeal based on seven grounds that can be summarized as follows, that is, that the learned trial magistrate erred in law and in fact by:
    1. failing to consider that the appellant did not deliberately fail to enter appearance since he had forwarded the summons to enter appearance and file defence to his insurance brokers/agents who failed to forward the same to his insurance company for them to enter appearance and file defence;
    2. failing to consider the draft defence to determine whether it had raised triable issues and instead finding that the draft defence had addressed itself to the plaint when in fact it had addressed the amended defence;
    3. failing to find that the appellant had an excusable explanation for his failure to enter appearance and thereby entitled to unconditional leave to defence the suit, his draft defence having raised triable issues;
    4. disregarding the appellant’s submissions and judicial authorities and failing to appreciate that denying a party a constitutional right to be heard ought to be exercised sparingly and as a last resort of the court.
  4. The appeal was canvassed by way of written submissions. Learned counsels for both parties filed their respective submissions urging their clients’ cases.
  5. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.  Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.  In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

  1. I have considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions for and against this appeal and cited cases. The issue for determination is whether the learned trial Magistrate erred in failing to set aside the default judgment and the consequential orders thereto.
  2. authorities abound holding that the court has a wide discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a judgment in default of appearance upon terms as are just to avoid injustice.  In the case of Mbaki & Others v Macharia & Another [2015] eKLR the Court of Appeal emphasized on the right of a party in a suit to be heard.
  3. The appellant has conceded that he was served with summons to enter appearance but never did so due to failure by her insurance brokers or agents to forward the summons to her insurers to enter appearance and file defence on her behalf. Therefore, there is no dispute that the default judgment was rightfully entered by the court. I consequently find that a regular default judgment was entered because in spite of the appellant being duly served with summons to enter appearance and plaint failed to enter appearance and to file defence in time as stipulated under the law. The appellant contends that this failure should not be blamed upon him or otherwise it is excusable. The learned trial magistrate found this to be indolence on the part of the appellant and dismissed that reason as inadequate to warrant setting aside the default judgment.
  4. The appellant avers that he has a constitutional right to be heard on the merits. I do not think anybody has denied him that right. He was served with summons to enter appearance but failed to do so. The law (Order 10 Rule 9 CPR) provides that where a defendant fails to enter appearance in time as stipulated the plaintiff is entitled to set down the suit for hearing. The Constitution in Article 50 on fair hearing accords every party a right to a fair hearing which includes the right to be heard as provided under Article 50(2)(k) to adduce and challenge evidence. At the same time the Constitution in Article 50(2)(e) for the right to have the trial begin and conclude without unreasonable delay. This means that cases have to be heard expeditiously. So that the right to expeditious hearing is actualized by the CPR providing for timelines within which a party should enter appearance and file defence with consequences of failing to abide being a default judgment.
  5. The foregoing position is well explained in the case of Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998 where the Court of Appeal held that:

“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on which the party not utilising the opportunity can be heard is why he did not utilise it.”

  1. Consequently, I find that the appellant’s plea that his right to a fair hearing was breached for his own failure to enter appearance and file a defence in time as stipulated in law is without merit.
  2. The appellant principally places blame upon his insurance brokers/agent for failing to forward the summons to enter appearance to the insurance company to take up the matter on his behalf.
  3. Considering a case where a party was placing blame upon his advocate for failing to take action in a matter, the High Court, Kimaru, J. (as he then was) in Savings and Loans Limited vs. Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 held as follows:-

“whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her Advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such Advocate’s failure to attend court. It is the duty of the litigant to constantly check with her Advocate the progress of her case. In the present case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff’s determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgement that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”

  1. Therefore, it is not sufficient for a defendant to say that he forwarded his summons to his insurance company to act and thereafter never followed up to find out whether or not it had acted on the summons. The defendant is the one who appears on the summons as a party, not the insurance company or insurance broker or agent. I find that the learned trial magistrate was correct to find that the appellant had been indolent in the manner he handled the summons and the case in general.
  2. Perhaps, the issue that needs to be considered is whether the failure to enter appearance and file defence is excusable and if so whether the respondent can be compensated by an award of costs? I will consider this issue as the last point.
  3. The next issue is whether or not the court should set aside the default judgment and give the appellant an opportunity to be heard in the matter. It has been held in numerous decisions 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…” (see Wachira Karani vs. Bildad Wachira (2016) eKLR and David Gicheru v Gicheha Farms Limited & another [2020] eKLR). I am well guided by these decisions.
  4. Order 10 Rule 11 gives the court wide discretionary power to set aside a default judgment.  The rule provides that;

“Where judgment has been entered under this Order, the court may set aside such judgment and any consequential decree or Order upon such terms as are just”

  1. This provision finds exposition in the case of Philip Kiptoo Chemwolo and   Mumias Sugar Company Ltd vs Augustine Kubede [1982-1988] KAR, where the court held:

“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and or the respective merits of the parties”.

  1. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice to the parties.  This is a judicial discretion, which like all other discretion it should be exercised judiciously. 
  2. In the case of Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited and Another [1998] eKLR) cited by learned counsel for the appellant it was held that inter alia that

“…where a draft defence is tendered with the application to set aside the default judgment, the court is obliged to consider it to see if it raises a reasonable defence to the Plaintiff’s claim.  If it does, the defendant should be given leave to enter and defend.” 

  1. In the present case, the appellant annexed a draft defence to the affidavit supporting the application to set aside. In the defence, he conceded that there was an accident as pleaded by the respondent in his defence but denied that the appellant was to blame. He instead blamed the respondent wholly for the accident and set out the particulars of negligence against the respondent.
  2. The learned trial magistrate found that the appellant had not in fact responded to the amended plaint but the original plaint and therefore he had not responded at all and so there were no triable issues to be considered. In other words, he found no reason to consider the statement of defence filed by the appellant.  
  3. I have looked at the plaint dated 18/9/2017 and the plaint amended on 21/6/2018. I note that there was only one amendment to the plaint relating to the registration number of the three-wheeler (Tuk Tuk) from KTWA 240V to KTWA 055V. No doubt this was a material amendment as it affects the substance of the suit. The plaintiff blamed the rider of the three-wheeler for causing the accident.
  4. The issue is fundamental because whereas learned counsel for the appellant submits that the insurer was well aware of the case because a statutory notice was sent to it, it is apparent that the notice to the insurer CIC General Insurance Company Ltd dated 7/11/2017 under section 10 of the Insurance (Motor Vehicle Third Party Risks Act (Cap. 405) Laws of Kenya referred to motor vehicle registration number KTWA 240V which from the amended plaint, was wrong. There is no indication that an amended notice was later sent after the amendment to the plaint was done. The insurer must then have been misled in that respect and therefore its denial that it had insured the subject motor vehicle in the name of the appellant herein.
  5. In the draft statement of defence, the appellant citing the three-wheeler (Tuk Tuk) registration number as KTWA 055V meaning the draft defence was on the amended and not the original plaint. The learned trial magistrate therefore erred in fact in finding that the appellant had responded to the original plaint and not the amended one. This error of fact then caused him to err in law by finding that there was no draft defence to be considered and therefore no triable issues worth considering.
  6. I note that in the heading of his Notice of Motion application dated 22/11/2021, the respondent captured only one defendant Mutunga Wambua who was the 2nd defendant and left out Njige Neshinka Grace, the 1st defendant in the suit. I note also that this mistake arose from the respondent in his initial pleadings starting with the verifying affidavit to the amended plaint sworn on 21/6/2018 where he only cited one defendant in spite of the original and amended plaints and citing two defendants. The appellant seems to have picked this heading referring to one defendant without paying attention to the other pleadings. The fact of citing one defendant then misled the learned magistrate to think that there was an amendment to bring on board a second defendant and thus his indicating that the appellant had only responded to the original plaint.  
  7. In the case of, Sebei District Administration v Gasyali & Others [1968] E.A. 300 Sheridan J, observed that;

“The nature of the action should be considered.  The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court.”

  1. The claim by the respondent herein was for compensation for bodily injury and loss occasioned to him when his motor cycle registration number KMDM 333C which he was riding collided with the three-wheeler registration number KTWA 055V owned by the appellant and being driven by one Mutunga Wambua who was the 2nd defendant in the suit.
  2. I have had the benefit of looking at the draft defence on record and the appellant has traversed the claims by the respondent in detail. It is not just a mere denial as submitted by learned counsel for the respondent. He pleads negligence against the respondent and has set out particulars of the same. 
  3. From the amended plaint and the draft defence, it is apparent that there was a collision between the motor cycle and the two-wheeler. Each party is blaming the other for the accident. In that case, it is difficult to find that there is no triable issue raised in the draft defence. I am satisfied that from the foregoing the defence by the defendant raises triable issues.  If the learned trial magistrate had properly directed himself to the facts and the law he would not have arrived at the finding that there were no triable issue raised by the draft defence.
  4. Going back to the issue of whether the appellant should be granted an opportunity to defend the suit in spite of his sleeping on his right and delay in filing the application to set aside, Apalloo, J. A (as then was) in the case of Philip Chemowolo & Another –vs- Augustine Kubende [1982-88] KAR 103 at 1040 appreciating the issues of procedure said:

“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”

  1. The Court of Appeal further appreciated that mistakes do occur in the process of litigation in the case of Murai vs. Wainaina (No. 4) [1982] KLR 38 where it was held that:

“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”

  1. Having considered this appeal, I find the same is merited and it would be fair and just if the parties were heard fully on the merits of their respective cases.
  2. Consequently, the appeal herein is allowed and the ruling of the learned trial magistrate dated 20/9/2022 is hereby set aside the substituted with an order granting conditional leave to enter appearance and file defence on the following terms: -
  3. The appellant to deposit half of the decretal sum in court within 15 days from today.
  4. The defendant/applicant (in the trial court) the appellant herein to pay the plaintiff/respondent (respondent herein) in the trial court all the thro-away costs pursuant and incidental to the entry of the default judgment therein assessed at KShs. 20,000/= before the matter comes up for pre-trial directions and in any case within 30 days from today.
  5. The appellant to file a statement of defence within 14 days after payment of the throw away costs.
  6. The respondent is at liberty to file and serve a reply to defence within 45 days from today.
  7. The matter to come up for pre-trial directions on 18/9/2024 before the Chief Magistrate for allocation of the matter to a magistrate for further hearing.
  8. In default of any of the conditions applicable to the appellant herein/defendant in the suit before the trial court, above, this appeal will be deemed as dismissed from today and the respondent herein/plaintiff in the trial court will be at liberty to proceed with matter as he deems appropriate.
  9. There are no orders for costs of the appeal.

Orders accordingly.

Written, dated and signed at Milimani this 23rd day of July, 2024.

Delivered on the Virtual platform, Teams this 23rd day of July, 2024.

In the presence of:

Njeri (Ms) holding brief for Kioga for the Appellant.

Kisiangani holding brief for Waiganjo for the Respondent.

Etropia: Court assistant


    Mutunga Wambua VS Joseph Lungahi Isalano Mutunga Wambua VS Joseph Lungahi Isalano