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INTRODUCTION
The Appellants herein, National Transport and Safety Authority, being dissatisfied with the Ruling of the Learned Trial Magistrate Hon. G. A. Mmasi Senior Principal Magistrate dated and delivered on 8th February 2021 appealed to this court against the whole ruling on the following grounds:
a). THAT the learned Magistrate erred in law and in fact in finding that the Appellant had been served with the hearing notices for the 12th June, 2020 when orders were issued exparte.
b). THAT the Learned Magistrate erred in Law and in Fact in dismissing the Appellants application to set aside the orders issued by the Hon. G.A Mmasi ex-parte on 12th June 2020.
c). THAT the Learned Magistrate erred in Law and in fact in determining service of the application on 16th March 2020 yet what was disputed in Appellants application dated 15th December 2020 was the service of the hearing notice of the 12th June, 2020 when orders were issued.
d). THAT the Learned Magistrate erred in law and in fact in failing to find that the 1st Respondent had failed to prove that he indeed served the Appellant with the hearing notice of the 12th June 2020.
e). THAT consequently the Learned Magistrate''s decision occasioned a miscarriage of justice.
f). THAT the Respondent continue to operate illegally using the said orders and not complying with the National Transport and Safety Authority (operation of the Public Service Regulations) 2014.
The court upon the filing of the record of appeal directed the parties to file their respective submissions but to date only the appellants have complied.
The appeal is a 2021 appeal and this court cannot wait any further for the respondents to file their submissions because that will contribute to immeasurable delay on a matter that has an overarching public interest issue. See the ruling by the learned Hon Lady Justice Meoli deleverd on the 21 st day of April 2022 granting stay of the orders.
In any event the respondents having been served with notices on 8/10/2024 and 10 th Feb. 2025, they failed to appear thus this court reserved the matter for judgment.
ANALYSIS AND DETERMINATION
The main issue in this appeal is whether the appellant was served with a notice for the hearing of the application on 12 th June 2020 when ex- parte orders were issued against them.
The appellants argued that the continued operation of the respondents unlicensed motor vehicles has created confusion in the transport sector with the appellant being accused of favoritism.
The appellant contends that they were not served and that the respondent served the Attorney General contrary to the law.
The appellants maintain that as a state cooperation they are independent of the office of the Attorney General in terms of the handling of their legal matters.
The appellant has placed reliance on the provisions of Section 3 of the NTSA Act 2012 which states as follows.
(1) There is established an Authority to be known as the National Transport and Safety Authority.
(2) The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of:-
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property:
(c) borrowing money;
(d) entering into contracts; and
(e) doing or performing all other things or acts for the proper performance of its functions under this Act which may be lawfully done or performed by a body corporate.
The appellant further contends that the power of State Corporations to sue and be sued independent of the Attorney General was defined in the case of Republic Versus Public Procurement Administrative Review Board The Consortium Of Rento Africa Ltd And Another Misc Jr No E001 Of 2020
64 and as such the respondent should have ensured that the notice for the hearing on the 12 th June 2020 was served upon the Appellant and not the Attorney General.
Additionally, the appellant is a body corporate with its own legal
personality since it can sue and be sued in its own right by virtue of section 3 (2) (a) (b) and (c) of the State Corporations Act () Laws of Kenya.
The A.G. in this matter cannot be said to be the advocate for the appellant and that the trial court erred in dismissing the application to set aside the ex parte order.
The appellant further submitted that as per the Respondent''s Affidavit, service was effected upon the 4th Defendant''s office and no such service was effected to the appellant.
The appellant therefore implored this court to consider the case of Republic Versus Public Procurement Administrative Review Board The Consortium Of Rento Africa Ltd And Another Misc Jr No E001 Of 2020 where the court pronounced itself on the matter of service and representation of State Corporations by the Office Of The Attorney General and hold that it was improper for the trial court to have treated service upon the Attorney General as service upon the appellant who is an independent corporate body.
The appellants further urged this court to consider that the appellant having not been served with the notice for the 12 th of June 2020, the learned honorable magistrate should have granted the application to set aside.
Further, according to the appellant the orders that were granted ex-parte were in form of final orders therefore maintaining the order as is would mean that the matter had been finalized without the Appellant being heard.
The appellant therefore urged this court to set aside the orders issued and order that the matter be heard on merit.
The court has carefully scrutinized the record to ascertain whether there was indeed service effected upon the appellant for the 12 th June 2020.
The law grants a trial court the power to set aside an ex parte order. Order 51 Rule 15 of the Civil Procedure Rules grants the court the power to set aside an ex parte order. That power of the court is to be exercised judiciously and should be preceded by an inquiry as to whether the applicant who seeks the setting aside of the ex parte order has demonstrated that they were indeed not properly served by the opposing party with a notice to attend court when the order in question was issued. The legal principles governing the setting aside interlocutory judgments or ex parte orders are the same .
The appellant contents that they were unaware of the hearing of the 12 th June 2020. The learned trial magistrate in his ruling dated 8 th February 2021 arrived at a finding that the appellant was served on the 16 th March 2020 and that they deliberately failed to attend court on 12 th June 2020 when the impugned orders were made.
The learned honorable magistrate on arriving at the decision stated: “ in discharging this burden of proof that indeed served the plaintiff, the defendant has adduced evidence the return of service by Sylvia Nasambu deposed on 8 th June 2020 which indicated service on the 1 st defendant on 16 th March 2020 and a stamp signifying such receipt by the DG of the 1 st defendant was affixed so that the claim by the 1 st defendant in its supporting affidavit of having not been served extinguishes.
On a balance of probabilities find that the service was effected on the 1 st defendant the chain of events effectively points at the 1 st defendant who while aware of the proceedings chose not to take part in the same leading to this court order of 12 th June 2020”
This court has perused the record and in particular the affidavit sworn by Makassy Nasambu Sylvia on 8 th of June 2020. The affidavit in paragraph 2 and 3 reads :
“2. THAT on 15th March, 2020 I received an Application dated 5th March, 2020 and a hearing notice from M/s Mugambi Njau Advocates for the Plaintiff/Applicant with instructions to serve the same upon the Defendants herein.
3. THAT on the 16th March, 2020 I proceeded to the offices of the 1st Defendant at NTSA building along upper hill road, Nairobi where I found a receptionist whom I introduced myself and stated the purpose of my visit and accepted service by stamping on the front page of my copies.”
To the affidavit is an annexture showing that the certificate of urgency was received by the Director General of the NTSA on 16 th March 2020. However, no where in the affidavit does one find a reference to the date 12 th June 2020 and the annexture to the affidavit is also silent on the same. It is abundantly clear therefore that in arriving at the decision that the appellant was served the learned Honorable magistrate failed to consider those material facts and also did not address her mind to the fact that there was no indication on the face of that affidavit of the date on 12 th June 2020 when the matter was to come up for hearing.
It is trite law that an appellate court can interfere with the exercise of judicial discretion by the Lower court where the High court on appeal is satisfied that the learned magistrate failed to take into account relevant facts or misdirected himself on some important matter thereby arriving at a wrong decision.
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 judgement 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.”
In the instant appeal this court is satisfied that the learned Honorable magistrate arrived at a wrong finding in law that the appellants had been served to attend court on 12 th June 2020 and that they deliberately failed to attend court. The affidavit of the process server relied on was grossly deficient in detail for it did not expressly state when the certificate that was served on 16 th March 2020 was to be heard. The upshot of the above is that the appeal succeeds and the order issued on 12 th June 2020 is hereby quashed with no order as to costs. Taking into account the nature of the matter , I direct that the Lower court file be immediately transmitted to the Chief Magistrates for hearing and determination of the matter on merit.
It is so ordered.
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INTRODUCTION
The Appellants herein, National Transport and Safety Authority, being dissatisfied with the Ruling of the Learned Trial Magistrate Hon. G. A. Mmasi Senior Principal Magistrate dated and delivered on 8th February 2021 appealed to this court against the whole ruling on the following grounds:
a). THAT the learned Magistrate erred in law and in fact in finding that the Appellant had been served with the hearing notices for the 12th June, 2020 when orders were issued exparte.
b). THAT the Learned Magistrate erred in Law and in Fact in dismissing the Appellants application to set aside the orders issued by the Hon. G.A Mmasi ex-parte on 12th June 2020.
c). THAT the Learned Magistrate erred in Law and in fact in determining service of the application on 16th March 2020 yet what was disputed in Appellants application dated 15th December 2020 was the service of the hearing notice of the 12th June, 2020 when orders were issued.
d). THAT the Learned Magistrate erred in law and in fact in failing to find that the 1st Respondent had failed to prove that he indeed served the Appellant with the hearing notice of the 12th June 2020.
e). THAT consequently the Learned Magistrate''s decision occasioned a miscarriage of justice.
f). THAT the Respondent continue to operate illegally using the said orders and not complying with the National Transport and Safety Authority (operation of the Public Service Regulations) 2014.
The court upon the filing of the record of appeal directed the parties to file their respective submissions but to date only the appellants have complied.
The appeal is a 2021 appeal and this court cannot wait any further for the respondents to file their submissions because that will contribute to immeasurable delay on a matter that has an overarching public interest issue. See the ruling by the learned Hon Lady Justice Meoli deleverd on the 21 st day of April 2022 granting stay of the orders.
In any event the respondents having been served with notices on 8/10/2024 and 10 th Feb. 2025, they failed to appear thus this court reserved the matter for judgment.
ANALYSIS AND DETERMINATION
The main issue in this appeal is whether the appellant was served with a notice for the hearing of the application on 12 th June 2020 when ex- parte orders were issued against them.
The appellants argued that the continued operation of the respondents unlicensed motor vehicles has created confusion in the transport sector with the appellant being accused of favoritism.
The appellant contends that they were not served and that the respondent served the Attorney General contrary to the law.
The appellants maintain that as a state cooperation they are independent of the office of the Attorney General in terms of the handling of their legal matters.
The appellant has placed reliance on the provisions of Section 3 of the NTSA Act 2012 which states as follows.
(1) There is established an Authority to be known as the National Transport and Safety Authority.
(2) The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of:-
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property:
(c) borrowing money;
(d) entering into contracts; and
(e) doing or performing all other things or acts for the proper performance of its functions under this Act which may be lawfully done or performed by a body corporate.
The appellant further contends that the power of State Corporations to sue and be sued independent of the Attorney General was defined in the case of Republic Versus Public Procurement Administrative Review Board The Consortium Of Rento Africa Ltd And Another Misc Jr No E001 Of 2020
64 and as such the respondent should have ensured that the notice for the hearing on the 12 th June 2020 was served upon the Appellant and not the Attorney General.
Additionally, the appellant is a body corporate with its own legal
personality since it can sue and be sued in its own right by virtue of section 3 (2) (a) (b) and (c) of the State Corporations Act () Laws of Kenya.
The A.G. in this matter cannot be said to be the advocate for the appellant and that the trial court erred in dismissing the application to set aside the ex parte order.
The appellant further submitted that as per the Respondent''s Affidavit, service was effected upon the 4th Defendant''s office and no such service was effected to the appellant.
The appellant therefore implored this court to consider the case of Republic Versus Public Procurement Administrative Review Board The Consortium Of Rento Africa Ltd And Another Misc Jr No E001 Of 2020 where the court pronounced itself on the matter of service and representation of State Corporations by the Office Of The Attorney General and hold that it was improper for the trial court to have treated service upon the Attorney General as service upon the appellant who is an independent corporate body.
The appellants further urged this court to consider that the appellant having not been served with the notice for the 12 th of June 2020, the learned honorable magistrate should have granted the application to set aside.
Further, according to the appellant the orders that were granted ex-parte were in form of final orders therefore maintaining the order as is would mean that the matter had been finalized without the Appellant being heard.
The appellant therefore urged this court to set aside the orders issued and order that the matter be heard on merit.
The court has carefully scrutinized the record to ascertain whether there was indeed service effected upon the appellant for the 12 th June 2020.
The law grants a trial court the power to set aside an ex parte order. Order 51 Rule 15 of the Civil Procedure Rules grants the court the power to set aside an ex parte order. That power of the court is to be exercised judiciously and should be preceded by an inquiry as to whether the applicant who seeks the setting aside of the ex parte order has demonstrated that they were indeed not properly served by the opposing party with a notice to attend court when the order in question was issued. The legal principles governing the setting aside interlocutory judgments or ex parte orders are the same .
The appellant contents that they were unaware of the hearing of the 12 th June 2020. The learned trial magistrate in his ruling dated 8 th February 2021 arrived at a finding that the appellant was served on the 16 th March 2020 and that they deliberately failed to attend court on 12 th June 2020 when the impugned orders were made.
The learned honorable magistrate on arriving at the decision stated: “ in discharging this burden of proof that indeed served the plaintiff, the defendant has adduced evidence the return of service by Sylvia Nasambu deposed on 8 th June 2020 which indicated service on the 1 st defendant on 16 th March 2020 and a stamp signifying such receipt by the DG of the 1 st defendant was affixed so that the claim by the 1 st defendant in its supporting affidavit of having not been served extinguishes.
On a balance of probabilities find that the service was effected on the 1 st defendant the chain of events effectively points at the 1 st defendant who while aware of the proceedings chose not to take part in the same leading to this court order of 12 th June 2020”
This court has perused the record and in particular the affidavit sworn by Makassy Nasambu Sylvia on 8 th of June 2020. The affidavit in paragraph 2 and 3 reads :
“2. THAT on 15th March, 2020 I received an Application dated 5th March, 2020 and a hearing notice from M/s Mugambi Njau Advocates for the Plaintiff/Applicant with instructions to serve the same upon the Defendants herein.
3. THAT on the 16th March, 2020 I proceeded to the offices of the 1st Defendant at NTSA building along upper hill road, Nairobi where I found a receptionist whom I introduced myself and stated the purpose of my visit and accepted service by stamping on the front page of my copies.”
To the affidavit is an annexture showing that the certificate of urgency was received by the Director General of the NTSA on 16 th March 2020. However, no where in the affidavit does one find a reference to the date 12 th June 2020 and the annexture to the affidavit is also silent on the same. It is abundantly clear therefore that in arriving at the decision that the appellant was served the learned Honorable magistrate failed to consider those material facts and also did not address her mind to the fact that there was no indication on the face of that affidavit of the date on 12 th June 2020 when the matter was to come up for hearing.
It is trite law that an appellate court can interfere with the exercise of judicial discretion by the Lower court where the High court on appeal is satisfied that the learned magistrate failed to take into account relevant facts or misdirected himself on some important matter thereby arriving at a wrong decision.
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 judgement 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.”
In the instant appeal this court is satisfied that the learned Honorable magistrate arrived at a wrong finding in law that the appellants had been served to attend court on 12 th June 2020 and that they deliberately failed to attend court. The affidavit of the process server relied on was grossly deficient in detail for it did not expressly state when the certificate that was served on 16 th March 2020 was to be heard. The upshot of the above is that the appeal succeeds and the order issued on 12 th June 2020 is hereby quashed with no order as to costs. Taking into account the nature of the matter , I direct that the Lower court file be immediately transmitted to the Chief Magistrates for hearing and determination of the matter on merit.
It is so ordered.
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