- Before the trial court was a suit for the recovery of Kshs. 364,000/= alleged to be arrears of rent due and owing by the Appellant to the Respondent. It appears that no defence was entered hence the Respondent sought and obtained a default judgment. That default judgment provoked the Notice of Motion dated 10th April, 2024 essentially seeking setting aside and a chance to file a defence.
- The reasons advanced to grounds of opposition as contained on its face and on the affidavit of the Appellant were that the alleged service upon him was highly doubtful that the process was duly served. It was thus contended that the decree passed was thus done without his knowledge and participation hence he was denied the chance to be heard hence in violation of Article 49 of the constitution of Kenya 2010.
- It was lastly added that the warrants issued and executed against him were prejudicial to him as the goods produced were his tools of trade.
- While the tenancy agreement was admitted, the Appellant took the position that while he was obligated to pay rent, the Respondent was tasked with the duty to pay outstanding water bill which stood at Kshs. 355,150.56/= having been inherited from the previous tenant, one Kamuti Mutisya, that around the year 2019, the Respondent went on efforts to evict to dispossess him of the premises by levy of inexplicable rent forcing him to vacate the premises on the 2nd of September, 2019, leaving behind the deposit of Kshs. 66,000/= with the Respondent.
- There appears to have been exhibited a draft statement of defense, inexplicitly, in affidavit in support of the application. In that draft defence the existence of the tenancy is admitted but default on rent payment is denied with additional pleadings that the Respondent had colluded with water service provider which left him to shoulder the extra burden as much as the Respondent unilaterally increased rent from Kshs. 33,000/= to Kshs. 40,000/= with the design to deposes him of the premise. It was equally alleged that the Appellant met repair costs of Kshs. 94,166/= paid water bill of Kshs. 80,000/= and left with the Respondent a deposit of Kshs. 66,000/=. The gist of that draft defense is that the Appellant was entitled, if he owed any rent arrears, to a rebate of the three decretal sums, of course subject to proof.
- The Application was opposed by the replying affidavit of the Respondent sworn on the 25th April, 2023, in which the position taken was that the Appellant was duly served by mobile enabled messaging application through Whatsapp as disclosed in the affidavit of service sworn by Nicholas Kerera. On the arguable defense, the Respondent denied there having been outstanding water bill as alleged together with an allegation that the lease was reduced into writing as alleged at paragraph 3 exhibiting annexure SKW1.
- The Respondent viewed the suit to revolve around arrears of rent and restoration costs of the premises to which the Appellant was presented as having no defense to.
- After the trial court heard the parties, it did deliver a short ruling whose effect was that the court was satisfied that the summons to enter appearance had been duly served, and thus dismissed the application for want of merit.
- It is that application which has provoked the current appeal in which the Appellant set out 10 grounds of appeal. Even if so split, the grounds say and fault the trial court for failure to appreciate the applicable law on setting aside default judgments.
- Both parties have filed written submissions, which the court has read and enormously benefited.
- Being a first appeal, the court’s mandate is to proceed by way of re-hearing with an obligation to re-examine and re-appraise the entire record with a view to coming to own conclusion[1]. With the mandate in mind, the court appreciates the law to be that when faced with an application for setting aside, the court’s discretion is indeed very wide and unfettered, with the duty to do justice so that the right to be heard is not forestalled but enhanced.
- In such an application asks itself whether the service was effective and if there is an arguable defense however disclosed. If the service is determined to have been ineffective, then the default judgment becomes irregular and due to be set aside as of right and without a look at the second consideration[2].
- However, even if the service was proper and effective, the court then asks of itself the second question, whether the Defendant has an arguable defense. An arguable defense is not necessarily the kind that must succeed.
- In the matter before the court, by its ruling the trial court did ask of itself the relevant question of service and was satisfied that the Appellant was properly served. Having answered the question in the affirmative, the court made a conclusion that the application had no merits.
- In stopping at the juncture he did, the court erred. It still had the duty to find out and interrogate the possible defense alleged by the Appellant. In committing that error, the court exercised its discretion improperly and invites the court as a first appellate court to itself interrogate whether there had been disclosed an arguable defense. In doing so, the appellate court must remind itself that the power to set aside is discretionary and that it takes a strong case for intervention. For the court to interfere with the exercise of discretion by the trial court, it must be shown that his decision is clearly wrong because he misdirected himself or because the he acted on matters on which he should not have acted or because the he failed to take into consideration matters which he should have taken into consideration.[3]
- The court has now looked at the draft defense and noted the allegation that the Appellant effected repairs at a disclosed sum, paid water bills and had effected a security deposit for rent which was still held by the respondent. By such assertion, the Appellant was saying that he did not owe and that even if he owed, he was equally owed. The court considers that as an arguable defense which the court should have given a chance by setting aside. In failing to set aside with such possible defence on record, the trial court erred by improper exercise of discretion in failing to consider a relevant matter.
- The court determines the decision as erroneous, sets aside the order dismissing the application and substitutes therefor an order allowing the application, but on terms that: -
- The defense be filed and served within 14 days from today.
- The Appellant shall deposit the sum claimed in the claim form into an escrow account in the joint names of the advocates for the parties, at a bank agreed between the two advocates, within 30 days from today.
- In default, to file defense or effect the deposit the sum claimed, this order for setting aside as granted shall stand lapsed and the default judgment shall stand reinstated.
- Having succeeded, the Appellant is awarded the costs of the appeal.
Dated signed and delivered at Nairobi this 22nd day of March 2024
1Peter M. Kariuki v Attorney General [2014] eKLR; Ephantus Mwangi v Dancan Mwangi [1981 – 1988] 1 KAR 278 ↑
James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another [2016] eKLR ↑
Mbogo and another vs. Shah [1968] EA 93.] ↑