Background
A brief background of the appeal herein as can be gathered from the record of appeal filed herein dated 7th February 2025 is that the appellant was the plaintiff and the Respondent the defendant in VIHIGA PMC ELC Case No. 56 of 2021(the suit).
The appellant had, vide the plaint dated 25th August 2021, sued the Respondent in respect of a parcel of land known as E. BUNYORE/EBUNANGWE/2586 (the suit land) on a claim of trespass. The appellant sought, in the suit, for orders of permanent injunction, general damages for trespass, costs of the suit and interest.
The record of appeal shows that the hearing of the suit proceeded ex parte as the Respondent failed to enter appearance and file defence after service with Summons to Enter Appearance, whereupon the appellant testified and closed his case and judgement delivered in his favour on 28th August 2022. The court granted the appellant an order of permanent injunction and costs of the suit.
The record shows further that as the appellant commenced the process of execution of the judgement so as to recover the costs of the suit, the Respondent filed an application dated 28th July 2023 seeking that the judgement entered in favour of the appellant be vacated and/or set aside and that the suit be fixed for hearing on merit. The record shows that the application was heard and ruling dated 9th April, 2024 delivered allowing the application.
The Respondent was granted 7 days to file and serve his Statement of Defence. The Respondent was also ordered to pay Kshs 20,000/= as thrown away costs within 30 days of the date of the ruling and each party ordered to bear own costs of the application. The court further made a default clause that incase of default, the order setting aside the exparte regular Judgment shall lapse and the appellant be at liberty to proceed with the matter.
The appellant being dissatisfied with the ruling filed VIHIGA ELC APPEAL NO. E012 of 2024 vide the Memorandum of Appeal dated 1st May 2024 challenging the ruling dated 9th Aril, 2024 on the grounds that;-
- The learned trial Magistrate erred in law when she made a finding that the Respodnent has not annexed to the affidavit in support of the application a draft defence and then determined that the Respondent defence had raised a triable issues to warrant setting aside the ex parte regular judgement.
- The learned trial Magistrate erred in law and principle when she did not appreciate the effect of the Respondent's failure to annex a draft defence-
- The learned trial Magistrate erred in law when she set aside the ex parte regular judgement without establishing that the appellant had in his evidence raised a friable issue-
- The learned trial Magistrate erred in law when she set aside the exparte regular judgement without establishing that the Respondent had offered a plausible explanation of not filing the defence in time.
- The learned trial Magistrate erred in law and fact by ignoring the appellant's evidence that the Respondent's motion dated the 28.7.2023 was based on defective Supporting Affidavits.
- The learned trial Magistrate erred in law and fact by ignoring the fact that the Respondent's Supporting Affidavit was not commissioned by the Respondent in the presence of a Commissioner for Oaths.
- The learned trial Magistrate erred in law and fact by ignoring that the annextures to the Respondent's Supporting Affidavits are not properly serialized<> ><> >.<>><>><>>> ><>>> ><><>><>><>><>><>><>< >< >< >< >><>><>><>><>><>><>><>><>><>><>><>><>><>>> ><>><>>> >> ><>>> >> ><>>> ><>><>>> >> >> >> >> >> ><>>> ><>>> >> >> ><>><>><><>><>><>>> ><>><>><>><>><>><>>> >> >> ><>><>>> ><>>> ><>>> >> ><> href="http://kenyalaw.org/caselaw/cases/view/29445" target="_blank"> Kingsway Tyres and Automart Ltd v Rafiki Enterprises Ltd NRB CA Civil Appeal No 220 of 1995 [1996] eKLR
I find that in the present case, from the contents of the Affidavit in Support of the application, the court was able to determine whether the applicant had a good defence or not.
The court also took into account constitutional provisions in article 50 and 159 in arriving at its decision and in exercising its discretion in favour of the applicant.
The court in addition to setting aside the judgement and allowing the Defendant to file his defence within given timelines, compensated the appellant by way of thrown away costs.
For the foregoing reasons, this court finds that the trial court did not err in allowing the application. The appeal challenging the ruling dated 9th April, 2024 namely; appeal No. E012 of 2024 must therefore fail.
The appeal No. E016 of 2024 challenges the ruling read on 27th August 2024. The ruling dated 9th April, 2024 had a default clause in the following terms;
“In default of any of the orders above made, the order setting aside the ex- parte regular judgement shall lapse and the plaintiff shall be at liberty to proceed with this suit.”
The record shows that the Respondent failed to comply with the orders in the Ruling dated 9th April, 2024. He failed to file defence and to pay the costs within the timelines given. The effect of this was that the order setting aside the judgement lapsed, the judgement was reinstated and the plaintiff/appellant herein was at liberty to proceed. So, the appellant proceeded and presented his Bill of Costs for assessment.
The record shows that on 27th August 2024 when the matter came for the bill of costs, the court ruled that in the greater interest of justice of the case, it will allow the Respondent another chance, proceeded to direct the defendant/respondent to pay the thrown away costs by close of business of 27th August 2024 and to serve the plaintiff with statement of defence within the same timelines. The court also directed the parties to set down the suit for hearing.
The appellant’s complaint as contained in the grounds of appeal and the submissions is that there was no formal application to set aside or review the ex parte regular judgement that had been reinstated. And that it was erroneous for the trial court to proceed to make the orders while the judgement subsisted.
The record shows that the trial court relied on the provisions of articles 25, 50, 159 of the Constitution and held that as a court of equity it had to make a distinction between that which was a matter of substance and that which was a matter of form. And uphold the substance. The court did not however address its mind to the judgement which had been restored by virtue of the default clause in the earlier ruling and the Respondent’s default and/or non-compliance.
To proceed to file and serve defence, pay thrown away costs and set the suit down for hearing in the existence of the judgement could not be just a matter of form but a matter of substance raising a question of whether the ensuing trial could be regular.
I find that the trial court erred in making an order allowing the Respondent to file defence and set the suit down for hearing while the ex parte regular judgement was still subsisting. Secondly it is clear from the proceedings that the Respondent had been given sufficient opportunity to redeem his position but failed to seize the opportunity.
The court finds that appeal No. E016 of 2024 has merit and allows it. The ruling dated 27th August 2024 is hereby set aside. Costs of appeal No. E016 of 2024 are awarded to the Appellant.
Judgement dated and signed at Vihiga and delivered this 10th day of July 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi- Court Assistant.
Bikundo for the appellant.