TARCIANA WENGANDU NYAGA VS KIURA NATHAN KANAMBIO

(Appeal arising from the decision of Hon. J.W. Gichimu, SPM in Runyenjes SPMCC No. 11 of 2019 delivered on 17^th November 2022)

1. The appellant filed a memorandum of appeal dated 23^rd November 2022 seeking the following orders:
   1. That the appeal be allowed and ruling dated 17^th November 2022 by the trial court be set aside;
   2. That the exparte decree by the trial magistrate be set aside and a de novo trial be held inter partes; and
   3. That the costs of the appeal be borne by the appellants.
2. The appeal is premised on the grounds that the learned trial magistrate erred in law and fact:

• 1. In not considering the substance of application and annexures presented, the evidence in rebuttal and the attachment of the appellant’s land which were triable issues;
  2. By not interrogating the material evidence proffered by the appellant and thereby treating the suit as unopposed;
  3. In not discerning the appellant was never served with processes leading to the exparte decree, a service that was important in the interest of justice;
  4. In not finding that the respondent concealed material facts in the suit and the decree was obtained by fraud or deceit;
  5. In disregarding the agreements signed between the parties with each subsequent agreement expunging the previous one;
  6. In relying on the agreements signed as if all were simultaneously valid thereby disadvantaging the appellant in the matter;
  7. In not discerning and considering the fact that the application was absolutely unchallenged and that there was no application for attachment of the appellant’s property;
  8. In disregarding the fact that the prosecuting counsel was privy to the agreements between the appellant and the respondent and could have been a witness in the matter; and
  9. In disregarding the fact that the entire decree as per the application dated 11^th October 2022 and the annexures thereto was grossly flawed having been obtained by fraud through concealment of material documents and facts.

1. The respondent filed a plaint dated 20^th February 2019 seeking judgment against the appellant for a refund of Kshs.410,000/= and in the alternative, an order for specific performance of the agreement. He also sought for liquidated damages for breach of the sale agreement and costs together with interest. He claimed that on 28^th November 2018, he entered into an agreement with the appellant for the sale and purchase of part of land parcel number Gaturi/Nembure/4856 for Kshs.1,290,000/=. That he paid Kshs.410,000/= and they agreed that the balance would be paid upon the appellant providing the land control board consent to transfer. That the appellant refused to procure the consent but instead, began selling the same land to other third parties and breached the conditions of the sale agreement. That this breach, according to the sale agreement, should demand that the defaulting party pays 35% of the full purchase price plus interest at bank rates as liquidated damages, which the respondent claimed.
2. The appellant did not enter appearance, neither did she defend the suit. The respondent filed a request for interlocutory judgment dated 28^th March 2019 and the matter went for formal proof. In his testimony as PW1, the respondent produced the sale agreement dated 28^th November 2018 together with a certificate of official search and demand letter. It was his testimony that pursuant to the agreement, the appellant was to sell part of parcel number Gaturi/Nembure/4856 to him for the sum of Kshs.1,290,000/= but he would pay Kshs.410,000/= as deposit and the balance upon transfer of the property. That after receiving the deposit, the appellant subdivided the land and sold it to one Mercy Njeri and Hillary Mbogo.
3. He prayed that if the court cannot order that the appellant gives him the land be bought, it should order that he is refunded the deposit together with damages as per the sale agreement. The court entered judgment against the appellant and issued a decree dated 18^th February 2020 ordering that the appellant pays the respondent Kshs.410,000/=, Kshs.451,500/= as liquidated damages for breach of contract and costs of the suit with interest.
4. Subsequently, the appellant filed an application dated 11^th October 2022, seeking, inter alia, that the exparte judgment be set aside and the appellant be allowed to defend the suit. The said application was premised on the grounds that her rights to be heard was denied and that she was not served with the application for attachment of her land. That the trial court ought to have reached its verdict after considering the merits of her case. That the applicant was never served with any summons at any stage of the case hence denying her right to be heard. In the application, she urged the court to set aside the exparte judgment and hear the matter afresh, granting her a chance to defend the suit.
5. In his response to the application, the respondent stated that a similar application dated 08^th March 2022 had already been determined, thus, the application was res judicata. He urged the court to dismiss the application. The appellant filed a further affidavit in response to the respondent’s averments, stating that the respondent is determined to defraud her of her land through unscrupulous transactions. In determination of this application, the court delivered a ruling dated 08^th March 2023 dismissing the application and the trial magistrate stated that he could not find triable issues given that the appellant did not file a draft defense. 
6. The respondent moved to execute through auction of the appellant’s land in order to satisfy the decree. This execution was stayed and a temporary injunction was issued against the respondent restraining him from selling the appellant’s land through this court’s ruling delivered on 27^th June 2023.
7. The appeal herein was canvassed by way of written submissions.
8. In her submissions, the appellant stated that the respondent exploited her illiteracy in writing the sale agreements which were several in number. She contended that the court should have relied on the sale agreement dated 04^th September 2018 and not the one dated 28^th November 2018. That there was no basis for awarding the interest awarded by the trial court. She stated that she was never summoned to appear before the trial court thus her right to be heard was denied and that she risks losing her land because she did not get a chance to defend the suit. She urged the court to allow the appeal.
9. The respondent submitted that the appellant was served with summons to enter appearance on 27^th February 2019 and an affidavit of service was filed on 02^nd April 2019 together with the request for interlocutory judgment. That the appellant never contested the service and she was present in court when the matter came up for notice to show cause where she promised to pay the decretal sum. That instead of the appellant complying with the notice to show cause requirements, she filed the application dated 12^th November 2021. That the appellant was also notified of the interlocutory judgment and she sought to have an out of court settlement with the respondent, promising to transfer ½ acre to him and there is an agreement to that effect. It was his submission that parties are bound by the terms of their agreement and that the respondent is entitled to the awards granted by the trial court. He relied on the case of South Nyanza Sugar Co. Ltd v. Leonard O.Avera (2020) eKLR and urged the court to dismiss the appeal.
10. In response to the respondent’s submissions, the appellant submitted that she was never served with the summons to enter appearance. She denied having approached the respondent for an out-of-court settlement at any given point in time. That she was denied a chance to ventilate her case because she was not served.
11. The issue for determination is whether the appeal is merited.
12. The appellant herein seeks for orders that the interlocutory judgment be set aside. The trial court dismissed the application to set aside its judgment because the appellant did not file a draft defense together with her application. In this appeal, she has included her draft defense in the record of appeal, which defense, she states, raises arguable issues. Upon perusal of the trial court’s record, it is evident that the summons to enter appearance and the plaint were served and an affidavit of service deposed by G.M. Karauro dated 27^th March 2019 was filed. The appellant failed to enter appearance or file a defense and the court entered interlocutory judgment against her.
13. In the draft defense provided by the appellant, there is contention about the sale agreement that should be referred to by the court in making its determination. The draft defense also challenges the territorial jurisdiction of the trial court. In my view, these are triable issues.In the case of Ceneast Airlines Ltd v. Kenya Shell Ltd (2000) 2 E.A. the Court of Appeal quoted with approval the case of Patel V. E.A. Cargo Handling Services Ltd (1994) E.A. 75 where it was held:

“The main concern of the court is to do justice to the parties and the court will not impose condition on itself to fetter the wide discretion given to it by the rule (order ix A rule 10) I agree that where it is a regular judgment as in the case herein the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merit does not mean in my view a defence that must succeed it means as Sheridan J. put it “a triable issue” this is an issue which raised a prima facie defence and think should go for trial for adjudication”

1. Moreover, where the court has ascertained that there are triable issues, it bears wide discretion with regards to setting aside or varying interlocutory judgments. The Court of Appeal in the case of Hosea Kiplagat v. John Allan Okemwa [2018] KECA 667 (KLR) stated:

“Order 10 Rule 11 (formerly Order IX Rule 10) of the Civil Procedure Rules vests the courts with discretion to set aside or vary interlocutory judgments and any consequential decree or order upon such terms as are just. This Court in the case of Pithon Waweru Maina v. Thuka Mugiria (1983) eKLR set out the principles governing the exercise of judicial discretion to set aside interlocutory judgment as follows:

“Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just … The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.””

1. The suit is a matter of contract. The appellant has submitted herein that she risks losing her property from which she fetches a livelihood. She seeks for a chance to be heard so that she can defend the suit on merit. It is my view that the defense should be placed before the trial court on merit. In the case of Sebei District Administration v. Gasyali & others (1968) EA 300 the court observed as follows;

“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 right of the respondent to enjoy the fruits of his judgment is to be viewed vis-à-vis the appellant’s right to defend the suit and it is upon the court to balance these rights. There is no doubt that the appellant was properly served with the pleadings but she failed to enter her defense. However, given the court’s discretion under Order 10 Rule 11 of the Civil Procedure Rules and Article 159 of the Constitution, it is prudent that the appellant be given a chance to defend the suit.
2. Therefore, I find that the appeal has merit and it is hereby allowed with orders thus:
   1. The ruling dated 17^th November 2022 by the trial court is hereby set aside;
   2. The decree given on 21^st January 2020 is hereby set aside;
   3. Runyenjes SPMCCC No. 11 of 2019 be heard de novo and the appellant be given a chance to defend the suit.
   4. The appellant to pay the respondent costs of this appeal.
3. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.