High Court 1614 of 2022

was contrary to the respondent’s pleadings. iii. THAT the learned trial magistrate erred in dismissing the application dated 8 th October, 2013 and failed to take hind of the appellant’s evidence. iv. THAT the learned trial magistrate erred in law and in fact by failing to take hind that no certificate of posting and/or proof was availed by the respondent to confirm the alleged interlocutory judgment was ever posted to the appellant as alleged. v. THAT the learned trial magistrate erred in law and in fact by failing to take hind of the respondent’s admission that though the respondent was the registered owner of the motor vehicle registration number KAJ 566R, one DAVID KAMAU WANGUI was a beneficial owner. vi. THAT the learned trial magistrate erred in law by failing to appreciate the motor vehicle registration number KAJ 566R had been indeed sold to one DAVID KAMAU WAMBUI by the time of the alleged accident by the respondent. vii. THAT the learned trial magistrate erred in law by failing to appreciate that it was the duty of the one DAVID KAMAU WANGUI the then 2nd defendant in Milimani CMCC NO. 6822 OF 2010 to lodge the duly signed transfer documents with the Registrar of Motor Vehicle together with the logbook for transfer of ownership of the said motor vehicle upon the same being surrendered to him. viii. THAT the learned trial magistrate proceeded unprocedurally in disallowing the said application. ix. THAT the learned trial magistrate’s decision has occasioned a miscarriage of justice. 8. This court gave directions to the parties to file written submissions on the appeal. The appellant vide his submissions dated 17th September, 2021 argues that the interlocutory judgment entered is irregular for the reason that he was not made aware of the existence of the suit to begin with since there was no service of summons to enter appearance upon him. 9. The appellant further argues that he has a good defence which raises triable issues that ought to be ventilated at the trial. 10. For the above reasons, the appellant urges this court to allow the appeal and to grant the consequent orders sought. 11. In reply, the respondent contends that the summons to enter appearance were served upon the appellant and that there is evidence of such service on record, and hence the interlocutory judgment is regular. 12. The respondent contends that the appellant therefore had no excuse for failing to enter appearance and/or file his statement of defence within the stipulated timelines and cites the case of Prime Bank Limited v Paul Otieno Nyamodi [2014] eKLR where the court reasoned that it is the duty of a defendant to demonstrate to the court as to the reason for not entering appearance and/or filing a statement of defence in good time, in order to justify the setting aside of an ex parte judgment. 13. It is the submission of the respondent that the appellant’s draft of defence does not raise any triable issues which would necessitate the setting aside of the interlocutory judgment. 14. It is also the submission of the respondent that she stands to suffer prejudice if the appeal is allowed since the suit was filed back in 2008 and it is apparent that the appellant is disinterested in defending the claim made against him, and that the respondent cannot be reasonably compensated for the delay in the matter. 15. To buttress her argument above, the respondent refers this court to the case of Rayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd [2018] eKLR where the court rendered thus: “The discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” 16. For all the foregoing reasons, the respondent is of the view that the appeal must fail. 17. I have considered the contending submissions and authorities cited on appeal. I have likewise re-evaluated the material

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placed before the trial court. It is clear that the appeal fundamentally lies against the trial court’s decision to dismiss the appellant’s application seeking to set aside the interlocutory judgment. I will therefore deal with the grounds of appeal contemporaneously under the following limbs. 18. The first limb of appeal concerns itself with whether the interlocutory judgment entered on 14th September, 2012 is regular. 19. In the application dated 8th October, 2013 the appellant stated that he was never served with summons to enter appearance and/or the pleadings in the suit or the notice of entry of judgment. 20. In reply, the respondent by way of the affidavit sworn by advocate Milly J. Odari on 23rd October, 2013 stated that following investigations on the whereabouts of the appellant by Millenium Global Insurance Investigators Limited (“the Investigators”), the summons to enter appearance and the pleadings were handed over to process server, Francis Mwaura Kamau, who then contacted the appellant through his mobile number and agreed to meet him at BC Insurance Agency located on 2nd floor of the Shopping Mall near Oshwal Primary School. 21. The deponent stated that the said Francis Mwaura served the appellant with the summons and that the appellant handed him a copy of the sale agreement while indicating that he had sold the second motor vehicle in the year 2008. 22. Upon hearing the parties on the Motion, the learned trial magistrate analyzed that service had properly been effected upon the appellant and therefore found the interlocutory judgment in place to be regular, in the absence of entry of appearance and the filing of a statement of defence by the appellant. 23. Upon my study of the record, I note that the respondent had availed a copy of the affidavit of service sworn by Francis Mwaura Kamau on 16th January, 2011 whose contents support the averments made in the replying affidavit and indicated hereinabove. 24. Upon my further study of the record, I note that the respondent also availed a copy of the sale agreement referenced hereinabove which according to the process server, was handed to him by the appellant at the time of service. 25. I did not come across any credible evidence by the appellant to refute the above position on service of the summons to enter appearance as well as the pleadings in the suit. It is also not in dispute that the appellant did not enter appearance or file his statement of defence in good time or at all. 26. In view of the foregoing circumstances, I concur with the reasoning of the learned trial magistrate that summons to enter appearance were taken out and properly served upon the appellant and hence the interlocutory judgment is regular. 27. This brings me to second limb of the appeal touching on whether the appellant’s draft statement of defence raises triable issues. 28. In his affidavit in support of the Notice of Motion dated 8th October, 2013 the appellant stated that he had sold the second motor vehicle to the third party vide the sale agreement dated 28th October, 2008 and hence at the time of the accident, ownership had already passed from him. 29. The appellant therefore stated that his defence raises triable issues which can only be considered at the trial. 30. On her part, the respondent dispelled this assertion by taking the position that the appellant appears as the registered owner of the second motor vehicle according to search records. 31. In her ruling, the learned trial magistrate made reference to the proviso of Section 8 of the Traffic Act, Cap. 403 Laws of Kenya which stipulates that in the absence of any other evidence, the person whose name appears on the registration document in respect to a motor vehicle will be considered its owner.

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32. In determining whether or not to set aside an ex parte/interlocutory judgment, a court is required to consider whether a party has a triable defence even where service of summons is found to be proper. In so saying, I cite with approval the rendition in the case of Tree Shade Motors Ltd v D.T. Dobie & Another (19951998) IEA 324 relied upon in the case of M/S Jondu Enterprises Limited v Spectre International [2019] eKLR thus: “Even if service of summons is valid, the judgment will be set aside if defence raises triable issues. Where a draft defence was tendered together with an application to set aside a default judgment, the court hearing the application was obliged to consider if it raised a reasonable defence to the plaintiff’s claim. Where the defendant showed a reasonable defence on the merits, the court could set the ex-parte judgment aside.” 33. From my study of the appellant’s draft statement of defence, I observed that he is essentially challenging the claim of his ownership of the second motor vehicle at the time of the accident is being challenged. 34. In my view, the foregoing consists of a triable issue which can only be adequately ventilated at the hearing of the suit. 35. The third limb of appeal and condition for consideration in setting aside an interlocutory/default judgment has to do with whether the respondent stands to be prejudiced. Upon my perusal of the record, I observed that the learned trial magistrate did not address her mind to this condition. 36. Going by the record, it is apparent that the respondent indicated that she would be prejudiced since she had filed the suit back in 2008 and it is apparent that the appellant had no interest in defending the claim. 37. However, from my study of the record I observed that the respondent did not place any credible evidence before the trial court to show that the prejudice suffered would be so irreparable as to constitute a grave injustice to her, or that any prejudice cannot be adequately compensated by way of costs. 38. Upon taking into account all the foregoing factors hereinabove, I am convinced that it would be a proper exercise of my discretion to interfere with the impugned ruling and to grant the appellant the opportunity of defending the claim. 39. In the end, I allow the appeal and grant the following orders: i. The ruling delivered on 7th March, 2014 is hereby set aside and is substituted with an order allowing the Motion dated 8 th October, 2013 with no orders as to costs. ii. The interlocutory/default judgment entered on 14th September, 2012 and all consequential orders/ proceedings are hereby set aside. iii. The appellant is granted leave to file and serve its statement of defence and counterclaim within 14 days from today. iv. In the circumstances of this appeal, a fair order on costs is to order that each party to bear its own costs of the appeal. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022. ............................ J. K. SERGON JUDGE In the presence of: ………………………………... for the Appellant ………………………………... for the Respondent

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