Background
1. This matter originated in the Small Claims Court in Nairobi where the respondent herein instituted a claim dated 21st March 2022 seeking the unconditional release of a logbook and a declaration that he does not owe the appellant any debt. The same was mentioned on 27th June 2022 when the court directed that the matter be heard on 20th July 2022. All this time the appellants had not filed a response to the claim. When the matter came up for hearing on 20th July 2022, the appellant and/or its legal counsel failed to show up in court and judgement in default was entered in favour of the respondent.
2. This prompted the 1st appellant to file an application in the lower court seeking to set aside the judgement in default entered on 20th July 2022 and for the draft Response to Statement of Claim be deemed properly filed upon payment of requisite fees.
3. Upon consideration of the application, the court found that it lacked merit and dismissed it with costs vide a ruling dated 29th September 2022. What is before this court is an appeal against the aforementioned ruling.
4. The appellants filed a memorandum of appeal dated 3rd October 2022 and listed 5 grounds of appeal, to support the prayer to have the appeal allowed and for the ruling of 29th October 2022 set aside. Further the appellants prayed for an order to be allowed to defend the claim filed against it in the Small Claims Court in SCCC No. E673/2022.
Analysis and determination:
5. I have considered the record of appeal, the submissions filed by the appellant dated 11th December 2023 and the respondent’s submissions dated 15th February 2024. The grounds of appeal may be condensed into the following issue for determination: whether the Small Claims Court erred in in dismissing the application dated 27/7/2022.
6. In a ruling dated 29/9/2022, the Small Claims Court considered the respondents’ application dated 27/7/2022 which sought inter alia an order to set aside the judgement in default entered on 20/7/2022 and an opportunity to file a response to the claim filed against it. The Honourable Adjudicator in a brief ruling held in part:
“I find that the reasons advanced by the respondent’s counsel are not plausible since as at the time the matter was slated for hearing, they had not filed a response despite having been given a chance to do so. The respondent was indolent, consequently the Notice of Motion application dated 27/7/2022 is unmerited. It is dismissed with costs.”
7. The crux of the matter is whether the grounds for setting aside a judgement in default had been met and whether the lower court failed to consider the said grounds.
8. The appellants applied to have the ruling of 20/7/2022 set aside on the basis that their counsel on record mis-diarized the hearing date of 27/7/2022 as 20/7/2022 and therefore they failed to appear. Further the appellants stated that their advocate’s delay in filing the response was occasioned by the late receipt of documents from the appellants’ representative who had been away on his annual leave and resumed on 26/7/2022.
9. On his part the respondent submitted that the trial court made a sound decision in dismissing the appellants’ application as it was an abuse of the court process. He submitted that the matter was mentioned severally in the presence of the appellants’ counsel but they failed to adhere to the directions to file a response to the claim despite the fact that they are aware that the Small Claims Court has limited time.
10. This court is guided by Order 10 Rule 11 of the Civil Procedure Rules in applications for setting aside of default judgements. It provides as follows: -
“Where judgement has been entered under this Order the court may set aside or vary such judgement and any consequential decree or order upon such terms as are just.”
11. In the case of James Kanjita Nderitu vs Maries Philotus Ghika & Another [2016] eKLR the Court of Appeal made the following detailed analysis on regular default judgement: -
“...in a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, but for one reason or another, he had failed to enter appearance or file a defence, resulting in default judgement. Such a defendant is entitled under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgement 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 judgement, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as at the case may be; the length of time that has elapsed since the default judgement 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 judgement among others...”
12. As set out in the Civil Procedure Rules, the court has unfettered discretion to set aside a judgement in default but will consider certain factors before making such an order.
13. Guided by the authority above, one of the considerations is the reason for the failure of the appellants to file their defence. In this case the appellants stated that it was due to the mistake of their counsel who mis-diarized the hearing date and therefore failed to appear in court. An extract from a diary page was attached to prove the inadvertent error.
14. This is quite different from the reason given for not filing a response to the claim despite several mentions as evident from the record. The appellants claim that this was due to the late receipt of documents from the appellants’ representative who had been away on his annual leave. This court notes that no evidence was tendered before the court to prove this averment.
15. Moreover, no evidence was tendered to prove that an effort was made to reach out to the representative or that this reason was ever relayed to the court. No explanation was been given as to why no other member of staff would not have provided the information required so as to avert delay instead of the court having to wait for the staff to resume from leave.
16. I have taken the liberty to look at the proceedings in the lower court file and I note that there are over 4 mentions at which the counsel for the appellant appeared without having filed their response to the claim. So that even besides not showing up for the hearing, the reasons given regarding the delay in filing a response to the claim are not plausible.
17. It was not so much the failure to attend because if counsel had filed a response to the claim the same would have been considered even in their absence. In this case, counsel failed to appear at the hearing of the matter and failed on a number of occasions to file a response to the claim as well.
18. As to whether the intended defence raises triable issues, the appellants attached a draft response to the claim filed against them in their application dated 27/72022. In the draft response, the appellants do not dispute that the respondent was extended a facility of Kshs. 120,000/=. They also confirm that an amount of Kshs. 102,751/= had been paid back and that there was an outstanding amount of Kshs. 165,633/=.
19. The swift advise for Kshs. 129,824/= which was produced by the respondent as evidence of full payment of the loan amount is also not controverted. On the face of it and further considering the objective of disputes before the small claims court and the need for expeditious disposal of matters, I am not convinced that the defense raises any triable issues.
Disposition
20. For these reasons the appeal before this court is without merit and the same is dismissed with costs to the respondents.
1. This matter originated in the Small Claims Court in Nairobi where the respondent herein instituted a claim dated 21st March 2022 seeking the unconditional release of a logbook and a declaration that he does not owe the appellant any debt. The same was mentioned on 27th June 2022 when the court directed that the matter be heard on 20th July 2022. All this time the appellants had not filed a response to the claim. When the matter came up for hearing on 20th July 2022, the appellant and/or its legal counsel failed to show up in court and judgement in default was entered in favour of the respondent.
2. This prompted the 1st appellant to file an application in the lower court seeking to set aside the judgement in default entered on 20th July 2022 and for the draft Response to Statement of Claim be deemed properly filed upon payment of requisite fees.
3. Upon consideration of the application, the court found that it lacked merit and dismissed it with costs vide a ruling dated 29th September 2022. What is before this court is an appeal against the aforementioned ruling.
4. The appellants filed a memorandum of appeal dated 3rd October 2022 and listed 5 grounds of appeal, to support the prayer to have the appeal allowed and for the ruling of 29th October 2022 set aside. Further the appellants prayed for an order to be allowed to defend the claim filed against it in the Small Claims Court in SCCC No. E673/2022.
Analysis and determination:
5. I have considered the record of appeal, the submissions filed by the appellant dated 11th December 2023 and the respondent’s submissions dated 15th February 2024. The grounds of appeal may be condensed into the following issue for determination: whether the Small Claims Court erred in in dismissing the application dated 27/7/2022.
6. In a ruling dated 29/9/2022, the Small Claims Court considered the respondents’ application dated 27/7/2022 which sought inter alia an order to set aside the judgement in default entered on 20/7/2022 and an opportunity to file a response to the claim filed against it. The Honourable Adjudicator in a brief ruling held in part:
“I find that the reasons advanced by the respondent’s counsel are not plausible since as at the time the matter was slated for hearing, they had not filed a response despite having been given a chance to do so. The respondent was indolent, consequently the Notice of Motion application dated 27/7/2022 is unmerited. It is dismissed with costs.”
7. The crux of the matter is whether the grounds for setting aside a judgement in default had been met and whether the lower court failed to consider the said grounds.
8. The appellants applied to have the ruling of 20/7/2022 set aside on the basis that their counsel on record mis-diarized the hearing date of 27/7/2022 as 20/7/2022 and therefore they failed to appear. Further the appellants stated that their advocate’s delay in filing the response was occasioned by the late receipt of documents from the appellants’ representative who had been away on his annual leave and resumed on 26/7/2022.
9. On his part the respondent submitted that the trial court made a sound decision in dismissing the appellants’ application as it was an abuse of the court process. He submitted that the matter was mentioned severally in the presence of the appellants’ counsel but they failed to adhere to the directions to file a response to the claim despite the fact that they are aware that the Small Claims Court has limited time.
10. This court is guided by Order 10 Rule 11 of the Civil Procedure Rules in applications for setting aside of default judgements. It provides as follows: -
“Where judgement has been entered under this Order the court may set aside or vary such judgement and any consequential decree or order upon such terms as are just.”
11. In the case of James Kanjita Nderitu vs Maries Philotus Ghika & Another [2016] eKLR the Court of Appeal made the following detailed analysis on regular default judgement: -
“...in a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, but for one reason or another, he had failed to enter appearance or file a defence, resulting in default judgement. Such a defendant is entitled under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgement 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 judgement, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as at the case may be; the length of time that has elapsed since the default judgement 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 judgement among others...”
12. As set out in the Civil Procedure Rules, the court has unfettered discretion to set aside a judgement in default but will consider certain factors before making such an order.
13. Guided by the authority above, one of the considerations is the reason for the failure of the appellants to file their defence. In this case the appellants stated that it was due to the mistake of their counsel who mis-diarized the hearing date and therefore failed to appear in court. An extract from a diary page was attached to prove the inadvertent error.
14. This is quite different from the reason given for not filing a response to the claim despite several mentions as evident from the record. The appellants claim that this was due to the late receipt of documents from the appellants’ representative who had been away on his annual leave. This court notes that no evidence was tendered before the court to prove this averment.
15. Moreover, no evidence was tendered to prove that an effort was made to reach out to the representative or that this reason was ever relayed to the court. No explanation was been given as to why no other member of staff would not have provided the information required so as to avert delay instead of the court having to wait for the staff to resume from leave.
16. I have taken the liberty to look at the proceedings in the lower court file and I note that there are over 4 mentions at which the counsel for the appellant appeared without having filed their response to the claim. So that even besides not showing up for the hearing, the reasons given regarding the delay in filing a response to the claim are not plausible.
17. It was not so much the failure to attend because if counsel had filed a response to the claim the same would have been considered even in their absence. In this case, counsel failed to appear at the hearing of the matter and failed on a number of occasions to file a response to the claim as well.
18. As to whether the intended defence raises triable issues, the appellants attached a draft response to the claim filed against them in their application dated 27/72022. In the draft response, the appellants do not dispute that the respondent was extended a facility of Kshs. 120,000/=. They also confirm that an amount of Kshs. 102,751/= had been paid back and that there was an outstanding amount of Kshs. 165,633/=.
19. The swift advise for Kshs. 129,824/= which was produced by the respondent as evidence of full payment of the loan amount is also not controverted. On the face of it and further considering the objective of disputes before the small claims court and the need for expeditious disposal of matters, I am not convinced that the defense raises any triable issues.
Disposition
20. For these reasons the appeal before this court is without merit and the same is dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 31st DAY OF MAY 2024.
F. MUGAMBI
JUDGE