Franato Enterprises v Anthony Maina Wachira [2016] KEHC 597 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.  376 OF 2003

FRANATO ENTERPRISES………………………………………APPELLANT

VERSUS

ANTHONY MAINA WACHIRA……………………………….RESPONDENT

JUDGMENT

1. This appeal arises from the ruling and order of the Senior Resident Magistrate Mrs N.A. Owino (as she then was) given on 19th June 2003 in Milimani CMCC No. 5380 of 2001.

2. The impugned  ruling determined  and dismissed  the appellant’s application  by way of chamber  summons  brought under  the provisions of  Section 3, 3A,34 (1) of the Civil Procedure  Act  and the then Order IXA Rule 10, 11, Order  XX1 Rule  21  of the old Civil Procedure  Rules, seeking   for setting  aside of the exparte  proceedings, judgment and decree entered against  the defendant/appellant  herein in favour  of the plaintiff/respondent  and all consequential  orders, and that the defendant/appellant/applicant  in that application be  granted  leave to defend the suit; and  that the suit  be heard  by another magistrate  other than Honourable N.A. Owino (Mrs)  ( as she then was).

3. The application also sought for stay of execution of the judgment and decree pending hearing and determination of the application.

4. After hearing the application which was not defended, the trial magistrate dismissed the application with costs to the respondent/plaintiff vide her ruling of   19th June 2003.

5. Being dissatisfied  with that  order of  dismissal, the appellant  herein who was   the   applicant/defendant in the trial court  filed this appeal   vide a Memorandum of Appeal  dated   20th June 2003   setting out  7 grounds of appeal  namely.

1. That the Learned Magistrate erred in law and in fact in dismissing the appellant’s application dated 19th May 2003 when the respondent had not in law opposed the said application.

2. The Learned Magistrate erred in law  and seriously misdirected herself when she dismissed the appellant’s  application without  regarding  or considering  at all the  appellant’s  affidavit  of Francis  Thaiya, sworn  and dated   19th May  2003  and the  contents  of that affidavit  in support  of the  application.

3. The Learned Magistrate erred in law  and seriously misdirected  herself  when she  failed  to appreciate  that in dismissing the  appellant’s  application dated  May 19,2008 she denied  the appellant the opportunity to defend  the suit, violating its natural justice  right to be heard in the suit.

4. The Learned Magistrate erred in law  and in fact when she stated as her reasons in  exercise  of the discretion to dismiss the  appellant’s  application dated 19th May  2003, that  the defendant was not  keen on having the  suit in Nairobi  CMCC  5389/2001  heard  when infact  the defendant  had always   desired  the suit to be heard on merit.

5. The Learned Magistrate erred and misdirected  herself, in law and  in fact  when she  found that  the  appellant  had not  justified  setting  aside  the exparte  judgment  as prayed   in the application dated  May  19th, 2003, yet there were sufficient  grounds  to set aside  the said proceedings.

6. The Learned Magistrate erred in law and fact in dismissing the appellant’s unopposed application  dated  19th May  2003, and she  thereby  exhibited bias  and  prejudice against the appellant, as she alleged that the defendant/appellant has not done anything  to amend its defence yet it  had done  so and the  defence   amended by  consent  of the parties.

7. The Learned Magistrate erred in law and in fact when she refused the appellant’s application dated May 19th, 2003 when in fact the appellant had justified its pleas in the said application.

6. The appellant  prayed that the  court  do set  aside  the order of Honourable  Mrs  N.A. Owino  in Nairobi CMCC  5380 of  2001  delivered in 19th June   2003  against the appellant  be  entirely set aside, that the respondent’s suit  in the lower court  which is  Nairobi CMCC 5380/2001  be set  down for hearing   denovo  before any  other magistrate  other tan Mrs  N.A. Owino, that  alternatively, the respondent’s  suit Nairobi CM CC  5380 of  2001  be dismissed with costs  to the appellant; that costs of Nairobi CMCC  5380 of  2001  be awarded to the appellant.

7. This being a first appeal, this court  is obliged to abide by the provisions  of Section 78 of the Civil Procedure  Act which   empowers the court to:

a) Determine a case  finally;

b) Remand a case;

c) Frame issues and refer  them for trial;

d) Take  additional  evidence or require  the evidence to be taken; or

e) Order a new trial.

8. And subject to the aforesaid  provisions on  powers of the appellate  and, Subsection  2  of Section  78 of the Civil  Procedure Act provides that the appellate   court  shall have  the same powers and  shall  perform as nearly  as may be the same   duties  as are conferred  and imposed by  the Act  on courts or original jurisdiction  in respect of    suits instituted  therein. The above provisions were the subject of interpretation by the Court of Appeal in SelleVs Associated Motor Boat Company Ltd. [1968] EA 123.

9. From the onset, I must  first clarify that the orders   from which  the appeal  herein  arises  are appealable  as of right  pursuant  to the old  Order 42 of the Civil  Procedure Rules which are now Order 43 of the Civil Procedure Rules.

10. The ruling and order arose from an application for setting aside exparte proceedings and judgment entered in default of attendance by the defendant and its counsel at the time when the case was called out for hearing.

11. The  appeal  was  heard  by Honourable  Onyancha  J  18th June  2015   before  he  was  transferred  to Kabarnet  High  Court  and owing to issues  relating to his  retirement age, the  learned Judge was  unable  to write the judgment  which  he had  reserved for delivery  on  16th September  2015.  Accordingly, the record was returned to the Presiding Judge of the Civil Division Honourable Msagha Mbogholi J who directed that I write the judgment   in this matter after proceedings were typed.

12. Both parties’  advocates were in  agreement  that the  matter  was  old and  that they did not wish to start  the hearing  denovo.  That is how  this court came to be seized  of  this age  old appeal and my humble  task now is to  examine  the record, reassess the affidavit  evidence  placed before the lower  court,  the submissions and  decision  by the trial  court and  arrive  at my own  independent  conclusion, bearing  in mind that  I did not  have the  advantage  of seeing and or hearing the parties as they canvassed the  issues before the trial court. Neither did I have the advantage of hearing submissions by counsels for the parties so I must consider the record   as it is.

13. In the submissions on behalf of  the appellant, Mr Harrison  Kinyanjui  advocate in support of this appeal, counsel submitted that  the plaintiff/respondent’s suit  in the lower court  relates to  compensation  in general and special  damages  arising  from  alleged  injuries  while  in the course  of duty.  That the defendant/appellant   herein  filed a defence  denying  the claim  and that the suit  was fixed for  hearing   before  the trial  magistrate   on 25th September  2002.

14. it  was  submitted that meanwhile the plaintiff/respondent  wrote a letter  dated  26th September  2001  addressed  to the defendant denying  any  injuries  or knowledge of the suit  against the defendant/employer/appellant.  That it was that letter that provoked the appellant herein to request the trial court to allow the defendant/appellant to   amend its defence on record.  That the letter by the respondent/plaintiff denied the facts leading to filing of suit.

15. That the court allowed the  defendant/appellant  to file an application to amend the defence  and on  17th October  2002, the application   for leave  to amend  the defence was  filed  and fixed  for hearing  on  18th November  2002.

16. that However, on 18th November 2002 counsel for plaintiff/respondent  herein  submitted before the trial court that the  defendant  had failed  to amend  the defence  and that he  was ready to  proceed with the trial  that day  yet the  application  for leave to  amend   the defence  was before  the court for hearing.  That Mr  Kinyanjui indicated  to the court  that he had  served the application  for leave  to amend the defence  upon the plaintiff’s  counsel  and that  he  was  ready  to prosecute  the  said application but that the trial  court  took the view that  on 25th September the court  had given a last  adjournment   and that the  appellant  herein had presumably not amended the defence, and the that the trial court concluded that the defendant was   delaying  the trial upon which she fixed the hearing   for  10. 20 a.m. the same  day.

17. That despite  protests  by the  defence counsel  that there  was   on record  an application for  leave to  amend  the defence  and  that even  despite  the respondent’s  counsel’s  indication that he was not  opposed  to the application for amendment  of the defence, the court neither  recorded that  consent nor an order  allowing the application for amendment.

18. That when counsel  realized that the court  was  determined to  hear the case  without considering  the pending  application for leave  to amend  the defence, he  informed the court that  in that  case, therefore, he  was not prepared  to proceed  with the trial , in view of the  pending  application to amend the defence, which application had not been prosecuted.

19. That the court  adjourned  the matter  to  28th November  2002 , while  penalizing  the defendant  to pay costs  of shs  5,000/-  That nonetheless, the court did not record the disposal of the application for amendment in favour of the defendant.

20. That on  28th November  2002  both  parties  agreed to have the matter  heard at  2. 30 pm the same day but that the court  did not record  that agreement and that when Mr Kinyanjui  went to court  at  2. 0 pm he  realized that the  suit had been  heard and judgment   reserved  for  5th December  2002   after the trial magistrate re fixing the hearing for  10 a.m. and taking it  up  for hearing at  11. 15 a.m., while  recording  that Coram was as before   yet there   were no advocates  before her  earlier on that day.

21. Further, that the record showed that Mr Tiego held Mr Wamalwa’s brief.

22. That following those developments, the defendant’s counsel expeditiously went to his chambers and prepared an application to set aside the exparte proceedings of 28th November 2002.  That the application was filed on 19th May 2003 because the file was not available   as the trial magistrate had taken it away for writing of the judgment.

23. That even the  plaintiff’s   counsel  could not  trace the file for  filing of  submissions  and that  on  6th February 2003  judgment  was delivered  without submissions from  either  side  and without notice to  the defence.

24. That  execution  proceedings    were  put in motion but the   defence  managed to file an application for stay and  obtained a temporary  reprieve  while seeking  to set aside   the exparte  judgment which  application   was heard  exparte  after the respondent’s replying  affidavit filed  late  was struck out.

25. That nonetheless, the trial court dismissed the appellant’s application to set aside the exparte judgment although the application was prosecuted unopposed.

26. Mr Kinyanjui prayed for that this court should order for a retrial after setting aside exparte judgment, to allow the defence to file its amended defence.  He also mentioned to the court that the trial magistrate   was vetted out for corruption and concluded that the defendant was seeking for justice and not for a favour.

27. In opposition to the appeal, Mr Wasonga counsel for the respondent  submitted that the record  shows that  on  28th February  2001 the defendant  filed an  application dated  29th October 2001 seeking for dismissal of the  plaintiff’s  case on the basis that  the plaintiff had denied  being an  employee of the defendant  company  and that on  13th March  2002 the trial court  dismissed that application  and directed that the suit  proceeds to hearing.  That on  25th September  2002  when the suit  came up for hearing  the defendant  sought  leave to amend  the defence and  Mr Wasonga  conceded  but that indeed  the  record  of the court  does not  show that concession but that nonetheless, the fact  that the defendant  actually filed the application would  suggest  that the court  must have  responded.

28. That on 17th October  2002 the  defence counsel  filed  an application  and fixed it  for hearing  on 18th November  2002  but that Mr  Mwaniki holding  brief for  Mr Kinyanjui  advocate  sought for  an adjournment.

29. Further, that on 28th November   2002 the court started its business at 9. 00 am but re fixed the matter at 10. 00 a.m.  Although the record does not show what transpired at 10. 00a.m.  And that the record shows that at 11. 00 a.m. the matter proceeded and Coram is recorded as before.

30. Referring  to the  letters dated 29th November  2002  addressed to the Chief Magistrate by  Mr Kinyanjui, it  was  submitted  that counsel had explained  what happened  on 18th November  2002  and  28th November  2002  hence  he must have  been aware  that the  suit  was scheduled for hearing  between 9-11 a.m.

31. In addition, that the defendant’s counsel never filed the amended defence for which leave had been granted.

32. It   was submitted that the conduct of the defendant showed lack of keenness to have the suit prosecuted which conduct does not deserve any further favourable discretion.

33. It  was  also submitted that  what  befell  the trial magistrate  was  irrelevant  and that the  impugned  ruling  confirms  that   the court  was  firmly  convinced  that  the defendant  was aware of the  time  for hearing  to be 9,10 and  11. 30 a.m. not  2. 30 pm.

34. Mr Wasonga  urged the court to take into account  all  relevant  issues  and come  to a proper  conclusion and  further submitted that  the delay in prosecuting   this appeal  is consistent  with the defendant’s conduct all  along hence the appeal  should  be dismissed  to allow the plaintiff/ respondent  to enjoy fruits of his judgment.  Finally, that too much time had passed and that a retrial would disrupt lives since documents are lost. Counsel submitted that a retrial is not suitable and that an end to litigation is necessary.

35. In a brief rejoinder, Mr Kinyanjui counsel for the appellant submitted that the trial court did not deal with all the issues.  Further, that when  counsel sought for the file to lodge  the application  for setting aside proceedings, the trial  court replied confirming non  availability of the court file   until judgment  would be  delivered  which  was done in  February  2003.  He submitted that he was diligent in handling the matter on behalf of his client.

Determination

36. I have considered the submissions by both parties’ advocates, which submissions essentially provide a detailed exposition of the trial record and what exactly transpired.

37. As earlier stated, this being a first appeal, this court is obliged to abide by the provisions of Section 78 of the Civil Procedure Act to evaluate and examine the lower court record and the evidence before it and arrive at its own conclusion.  This principle of law was well settled in the case of Selle – Vs – Associated Motor boat Co. Ltd (1968) EA 123where Sir Clement De Lestang stated that,

“This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.  However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammad Sarif – Vs – Ali Mohammed Solan (1955, 22 EACA 270).”

38. And in the case of Mbogo – Vs – Shah & Another (1968) EA 93,the court set out circumstances under which an appellate court may interfere with a decision of the trial court as follows:-

“I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion.”

Applying the principles set out in the Sielle v Associated Motor Boat Company Ltd (supra) re examination of the trial record is necessary.

39. Vide  a plaint dated   26th January  2001  and filed in court  on 1st    August  2001, the plaintiff/respondent  herein   Antony Maina  Wachira  sued the appellant/defendant  claiming that he was the appellant’s employee and that while he  was so engaged  upon his employment  with the  appellant, he  was injured.  He attributed his injuries to the negligence of his employer the appellant herein.  He claimed for general damages and costs of the suit.

40. The appellant entered  an  appearance  on  26th September   2001  through the law  firm of J Harrison Kinyanjui & Company Advocates  and filed defence   on  11th October  2001  denying  the plaintiff’s  claim and maintaining  that if   at all  the respondent   was injured  which  was   denied, then he  was  the author  of  his own misfortune  hence the doctrine of  Volenti non fit injuria  applied.  The  defendant  at paragraph 10 of  its  defence  further pleaded  that the  plaintiff  had by letter  dated  26th September  2001 addressed   to the  defendants  repudiated  and totally denied  instructing  the advocates  on record  to sue  the defendant  and that the  defendant  would therefore  seek  to have  the proceedings struck  out for being  scandalous and  amounting  to an  abuse  of the court  process  it prayed  for dismissal of the plaintiff’s suit against him with costs.

41. The letter  dated  26th September  2001  became  subject  of the defendant  seeking to dismiss or strike  out the  plaintiff’s  suit against  the defendant  for being   an abuse of  court process, and   or that the plaintiff   do furnish  security  for costs s of shs  48,000.

42. To counter  that application and letter the plaintiff  swore  an affidavit  on  13th February  2002  denying  that he or at all voluntarily  wrote such  a letter disowning  his claim  or instructing  his advocate  to file suit  on his behalf  and  contending that  the letter   had been written by  one Francis  Ndichu Thaiya of the defendant  company who asked the plaintiff to copy it in the latter’s  handwriting   promising  to pay the  plaintiff  for his injury and that  the letter was used  to mislead the plaintiff  hence he  disowned it.

43. The court Honourable  M.A. Murage  Mrs (SRM)  after considering that  application  dismissed  it vide  a ruling  delivered   on 14th March  2002. This was before Honourable N.A. Owino Mrs SRM took over the conduct of the matter.  In dismissing that application the trial magistrate  held that  the issue of whether or not the plaintiff  wrote that letter  voluntarily  was a triable  issue  hence the  matter should  proceed  to a full trial.

44. This court notes that the said application was filed at the first instance before the suit was set down for hearing.

45. On  26th March  2001 the  parties advocates  appeared in the registry  and fixed   the suit for hearing  on  25th September   2001  at 9. 30 a.m. which  was the first time  that the suit  was  being  set down  for hearing.  Come  29th September  2001, Mr Kinyanjui counsel  for the defendant  is recorded as indicating to court that he  was not ready to  proceed  as he needed  time to  amend the defence.  He sought for limited time to make the application.  Mr Wamalwa counsel for the plaintiff opposed Mr Kinyanjui application on the ground that the defendants were served with a hearing notice and that they had sufficient time to amend their defence.  The court recorded as follows: “last adjournment” and set the suit for hearing on 18th November 2002, while   condemning the defendant to pay costs of shs 5,000/- and   the plaintiff’s costs.

46. On 18th November 2002 Mr Mwaniki held brief for Mr Kinyanjui for the defendant and sought  for  adjournment  because  Mr Kinyanjui  was engaged before  Mwera  J  in HCC 2176/01 which  matter  a hearing notice was served  upon him under certificate  of  urgency.

47. Mr Wamalwa opposed an  adjournment  on the ground  that the date  was  taken by consent, Counsel for the  defendant  had not  informed  him  of the problem and  that witnesses were in court  hence he was ready  to  proceed.  Mr Wamalwa also  stated that the  defendants  were given  a chance  to amend  the defence  which they  had not  hence  they  were delaying the case.

48. On behalf of Mr Kinyanjui, Mr Mwaniki replied that the application was already served.  The  court  remarked that  “ on 25th September  2002  the defendant  were  given the last  adjournment.  They have not even amended the defence.  This is a ploy to delay the hearing of the case   which this court will not succumb to.  Case to proceed at 10. 20 a.m.”

49. Later  on the same day at  11. 15  a.m. Mr Kinyanjui  was present  and pointed out to the court  that his application  was  on  record but  that the  registry  was not able to  give  him a date  for the hearing of the application earlier  he sought  for an adjournment.

50. Mr Wamalwa indicated that he was ready to proceed but that he had no objection to the application.  The record  shows that  the court only noted   the date  of the application  as  17th October  2002   and adjourned  the matter   to 28th November  2002 for hearing.

51. On 28th November 2002  Mr Achoki advocate appeared  on behalf of Mr Wamalwa  and requested  for a hearing  for  10. 00 a.m. and the court set  the matter for hearing for  11. 15 a.m.

52. At 11. 00 am the court recorded Coram as before and with Mr Tiego for Wamalwa   for plaintiff being present.  The trial magistrate proceeded with the hearing of the matter exparte. Two witnesses including the plaintiff and his doctor testified and closed his case. The trial magistrate then ordered  for submissions to be filed  by 2nd December  2002  and judgment  to be delivered  on 5th December  2002  at 2. 30 p.m.

53. The trial magistrate explains that Judgment   was delivered  on 6th February  2003  in favour of the plaintiff  for shs 280,000 general  damages  plus costs  in the presence of  Ngugi for Wamalwa  for the plaintiff  and in the absence  of the defendant.

54. The above  process  led to  serious  issues  of impropriety being raised  in the form  of  a complaint  by Mr  Kinyanjui  against   the trial magistrate  besides  him filing an application  seeking for  setting aside   of the exparte  proceedings  before judgment  could be  delivered  but by letter dated  5th December  2002  Honourable  H.A. Omondi  SPM  wrote  to Mr Kinyanjui communicating  the trial  magistrate’s decision not release  the trial  file  until after  he judgment  was written and  delivered.

55. The trial  magistrate  also wrote  an  explanatory  letter to the SPM giving  a chronology of events  leading to  the complaint  by Mr  Kinyanjui and  asking  that Mr Kinyanjui  waits  until the  judgment  is delivered  then  he can apply to set it aside.

56. It  was therefore  after the  judgment  was delivered on 6th February  2003  that Mr Kinyanjui  filed  his application for stay of  execution and for setting aside  of exparte  judgment, which application is dated  19th May 2003 and which was heard unopposed  but the trial  magistrate dismissed  it  with costs  on 19th June  2003, while  bitterly  complaining  against Mr  Kinyanjui  as having  intimidated him while affirming  that  she  would stand firm  against  such intimidations  and denying  ever being  biased  against any  party  in that  case and stating  that she  had no reason  to.  The trial magistrate in her ruling maintained  that the defendant  had  more than his  share  of the  adjournments; that he did not  validate his defence  despite too much time having   been given to him and that therefore  indulgence  ought  to be  given  to the  plaintiff  too.

57. The learned  trial magistrate  accordingly  dismissed  the appellant’s  application  for setting  aside  exparte  judgment  with costs, thereby  provoking  this appeal  as set out  in the 7  grounds of the Memorandum of Appeal reproduced earlier on.

58. From the above  detailed  chronology  of events  leading  to this  appeal, the main issues for   determination  are whether, on the material  placed  before  the trial court  in the appellant’s  application for  setting  aside  of the exparte proceedings and judgment,  the trial  magistrate  erred  in declining  to grant  to the  appellant  the orders sought; what  orders  should this court make; and  who should  bear  the costs of this appeal?

59. In determining  the first  issue  above, it is  important  to lay down the  established  principles  for setting aside  exparte  judgment.

60. In considering  whether or not to set  aside exparte  judgment, the trial  court was  exercising  judicial  discretion  vested in the court  pursuant to the  provisions of Order IXA Rules  10,11 of the  old Civil Procedure Rules.  That discretion, being judicial discretion, had to be exercised judiciously and not capriciously or arbitrarily.

61. The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are clearly set  out in the case  ofPython  Waweru Maina  V Thuka  Mugiria  [1983] e KLR as follows:

a) 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. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E b) Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967] EA 116 at 123B, Shabir Din v Ram Parkash Anand  (1955) 22 EACA 48. c) Thirdly the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah [1968] EA 93

3. The court has no discretion where it appears there has been no proper service (Kanji Naran v Velji Ramji [1954] 21 EACA 20). Dgment (sic) does not cease to apply because a decree has been extracted (Fort Hall Bakery Supply Company v Frederick Muigon Wargoe [1958] EA 118).

5. Some of the matters to be considered when an application is made are, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any other material factors which appear to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex parte and whether or not it would be just and reasonable, to set aside or vary the judgment, upon terms to be imposed (Jesse Kimani v McConnell [1966] EA 547, 555 F).

6. 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, it should be remembered that to deny the subject a hearing should be the last resort of a court. (Jamnadas v Sodha v Gordandas Hemraj (1952) 7 ULR 7)

7. a discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. (Smith v Middleton [1972] SC 30)

8. The respondent could have been compensated by costs for the delay occasioned by his advocate’s dilatoriness and the appellant should not have been denied a hearing because of his advocate’s mistake even if it amounted to negligence, in the circumstances of this case. (Shabir Din v Ram Parkash Anand (1955) 22 EACA 48,51 and Hancox J (as he then was) in Gurcharan Singh s/o Kesar Singh v Khudadad Khan t/a Khudadad Construction Company Nairobi HCCC 1547 of 1969).

9. That the dispute between the parties was not a trivial one, that a defence had been filed in time, that the respondent could have been compensated with costs and that the appellant should not have been denied the hearing because of the mistake of his advocate, were all matters which the magistrate failed to take into consideration in exercising his discretion and this entitled the judge to interfere with the decision, which he didn’t. (The El -Amria [1981] 2 Lloyds Rep 119, 123 CA).

10. The judge had misdirected himself in stating that the appellant had not been present in person at the hearing of the summons to set aside the ex parte judgment while the record showed that he had been present and had stated the essence of his defence. The judge had made an error of fact which, if he had not made, he would have considered the decision of the magistrate in a different light.

11. If the magistrate had not felt able to examine the justice of the appellant’s application and whether there was a triable issue by questioning him and examining his pleadings, he should have at least offered him an adjournment, subject to being penalized for costs, so that the matter could be properly reviewed.

12. The appropriate way to deal with an objection to the appearance of counsel for a respondent on an appeal on the ground that he had not lodged or served a notice of an address for service would be to allow him an extension of time in which to comply with the requirement, subject to a penalty in costs where appropriate. (Per Kneller JA) The failure of the respondent’s advocate to give a full and sufficient address for service caused the appellant no prejudice and the point should not have been taken by his advocate.

13. (Per Chesoni Ag JA in obiter) It is unfortunate that advocates’ sins and omissions are sometimes visited on their clients, who are left without the remedy they sought, but to sue the advocate for professional negligence, but where the litigant shows that his default has been due to the advocate’s mistake, in an application of this nature unless injustice would be occasioned the other party the court should consider the applicant’s case with broad understanding.”

62. Applying  the above  elaborate  principles  of law which  have  stood the  test  of times as applied in many other  subsequent decisions of this court and of the Court of Appeal both pre and post the 2010 constitutional period, and in answering  the first question, and as earlier stated, the setting  aside  of exparte  judgment  is an  exercise  of judicial discretion  which exercise  must therefore  be judicious  and not  capricious  or  arbitrary and should not be  exercised  to assist a party who is hell bent to delay  and  derail the cause of justice for the  adverse  party.

63. Therefore, did the trial magistrate exercise her discretion judiciously in declining to set aside her judgment to allow the defendant defend the suit?

64. In Mbogo v Shah the Court of Appeal rendered itself thus on the subject, as per Sir Clement De Lestang VP:-

“I think it is well settled that this Court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

65. The Court of Appeal also held in Caroline Elsa Anne Sturdy v John Greaves Hilder [1984] eKLR”) per Nyarangi, AG. J. A.(as he then was) that:-

“It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision would have been different.”

66. I observe  that the first time  the suit  came up for hearing Mr  Kinyanjui  intimated  to court that  he needed  to file an application  for leave  to amend the defence  and the court  grudgingly  granted  him a “last adjournment”and fixed a hearing date.

67. This court  takes judicial notice  that this  suit  was being  prosecuted  at a time  when technicalities  were the norm  rather than the  exception  and that parties  to suits  endured so much  delay of their  cases being heard  but from  the  record, the court  gathers  that the trial magistrate  Mrs N.A. Owino  impressively, was extremely  keen to have the matter heard expeditiously which is the  hall mark of justice, that justice  shall not be delayed and that is why she  granted last adjournment on the first hearing. From the way the trial magistrate was keen to have the matter heard on the first day, no doubt, she considered expeditious disposal of the suit as essential to the dispensation of justice.  Therefore, the  fact that  she  was  vetted  out  of the judiciary, for whatever  reasons, it  has not been shown  that the reason  was related to  complacence or delayed  hearing of matters or in the delivery  or judgments which is not the same as being corrupt.

68. The above position notwithstanding, cases belong to parties, who must be given opportunities to put forth the best of their sides of the cases.  Where a party seeks  at the first   hearing for leave  to amend  their pleadings, I do  not see  any prejudice  that  would have been  occasioned to  the plaintiff if the  defendant  had been allowed to  amend  its pleadings before the suit was set down for hearing.  By granting last adjournment on the first date of hearing of the case, Justice, in this case, was being sacrificed at the altar   of expedition, which should never have been the case, especially where that would occasion prejudice to the other party.

69. I note that when Mr  Kinyanjui  sought for  an adjournment  to enable  him file an  application for leave to amend  since it  appears that as at that time, pleadings had closed, the  court  grudgingly, and granted him the adjournment proceeded  to fix a hearing  date, without   paying  regard to the question  of whether, upon the filing of the application for leave for amendment of the defence,   the plaintiff would  have wished to file a reply or whether  the plaintiff, upon   being   served  with a draft   amended  defence, would have wished  to file an amended  plaint.

70. Those  are factors  which, in my humble  view, the learned  trial magistrate  ought  to have taken into consideration and which she did not, at  the time  she made  her decision the adjourn the first hearing  to another   definite  date yet the application  for leave  to amend the defence   had not been filed.

71. This court further observes that the application for setting aside   the exparte judgment   was prosecuted unopposed.  This  is not to say that the trial court  should have  automatically granted the application as prayed, as   the onus of  proving that the orders  of setting aside  the exparte judgment were merited  lay with  the  party  applying to  satisfy the court, as the power to grant  or refuse  to grant  the orders  sought are  discretionary in  nature.

72. The manner of exercise of that  discretion  is as  espoused in Order 1XA Rules  10 and  11  of the  Old Civil Procedure  Rules and as expounded in the Maina  Vs Mugiria  (supra) case,  which case  laid down  several principles applicable  for the grant  of the order for   setting aside  of exparte  judgment, and which  principles  I have  laid  bare in this judgment.

73. Regrettably, what this court   finds on record  in the ruling  of the learned  trial magistrate  are lamentations  of how she had indulged the advocate  for the defendant, who appeared hell bent to delay and derail the  hearing of the case, and who  also  allegedly appeared to be intimidating  her  with incessant requests  for indulgence  to enable  him amend  his client’s   defence  before the hearing  could commence.

74. As I have stated earlier, where there  is a request for  amendment   of pleadings  as  was the case in this  case, and  the court is  inclined to grant  leave to amend  the pleadings, it  was  important  that the court, while  giving  timelines, considers  or exercises  patience  to allow  the amendments  to take effect before  setting down the suit for hearing.  Expedition should never override the ultimate goal of achieving justice for the parties; particularly where the   delay is not inordinate.

75. The trial   record shows that there  was absolutely  no delay  occasioned by the defendant’s counsel  in that he sought  for leave to amend  the defence  on his  first  appearance   for hearing  on  25th September  2002  and upon being  granted  an adjournment, on 17th October  2002  he  filed the  said application  annexing  a draft  amended  defence, which  application  was, as per the record, given  a hearing date  for  18th November   2002.  The latter date is the same date on which the main suit was scheduled for hearing.  It appears that on the said latter date, Mr Kinyanjui- from his affidavit,  was   engaged  before the Honourable  Mwera  J in HCC  2176/01 as explained by Mr Mwaniki hence  he  instructed  Mr Mwaniki to hold  his brief.  Mr Mwaniki did not indicate whether he had instructions to proceed with the matter.

76. The record  also  shows that Mr Wamalwa counsel  for the plaintiff  stated that he  was  ready to proceed and complained  that  the defendant  was given   a chance  to amend  the defence but that  they had  not.  The court  remarked that the defence were given  the last adjournment  and that they had  not even  amended   the defence hence  that adjournment being sought  was a ploy to delay the hearing  of the case  and that therefore  the matter  would proceed   at 1. 20 a.m.  On that very  day Mr  Kinyanjui  appeared  at 11. 15 a.m. and notified the court  that there   was an application on record  and that  the registry  was not able  to give an  earlier date.  Mr Wamalwa indicated that he was not opposed to the application for amendment.  The court granted adjournment with costs.

77. With due  respect to the proceedings of that day  18th November   2002, this court  is  perturbed  by the fact that  it is clear that the appellant herein had filed an application for leave to amend the defence  and the said application  had been given  that very date for  the hearing  of the application which  had been served upon the respondent.

78. There is also evidence that the respondent’s counsel was not even opposed to the said leave to amend being granted.  The question    therefore is, did the court and   the respondent/plaintiff’s counsel expect   the defendant to amend and file the amended defence before leave   being granted?  That may have been   their expectation. However, that would be jumping the gun and putting the horse before the cart.  This court  does not  understand what  amendments  the court and  Mr Wamalwa  advocate   were talking  about since the  amendments  to the defence  could only have been effected after leave was granted.

79. In addition, the plaintiff’s  counsel having indicated that he  was not opposed to that  application, what  was left for the trial magistrate  was to grant the  orders for  leave to amend  and or order that the draft  amended  defence to be  deemed to be duly filed.  She  then  had the option of either  proceeding with the hearing of the suit on that day  of  18th November  2002, in the event  that the plaintiff’s counsel    intimated  that he  did not  wish  to file  any reply to the amended defence or to amend  the plaint following  amendments to the defence; or  adjourn the matter to enable  the plaintiff  to act as appropriate.

80. Instead, the record  does not  show  any  order allowing the application  for leave  to amend, the defence, which order  would have  expedited  the hearing  of the suit.

81. The trial magistrate again fixed  a hearing  date for  28th November  2002  and it is  on the latter date that the  matter proceeded  in the absence of  Mr Kinyanjui who  deposed in his affidavit in  support of the application for  setting aside  the exparte  judgment  that he  had agreed  with Mr  Wamalwa  to proceed  at  2. 20 pm and that  by the trial court  proceeding  to hear the suit at  10. 00 a.m. or 11. 20 am, the court  and the  plaintiff  were stealing  a match on him and therefore his client who was denied a hearing.

82. Mr Kinyanjui then embarked on an endless  expedition of  trying to  arrest the judgment by filing  an application to vacate  the proceedings   of  28th November  2002  but  was  repulsed  back even after writing  to the Senior Principal Magistrate  in charge  of the court station, and the  Executive Officer.  He was  advised  that the trial magistrate had refused to release  the court file  which  was  with her  for purposes  of writing  a judgment  and that she   had even  written an explanatory  letter which was given to Mr  Kinyanjui, advising  him to  wait for  judgment  to be delivered  before he could apply to set it aside.

83. Anybody  reading that  explanatory  note by the trial  magistrate  gets  the impression that it  was obvious  that she was going to determine  the matter in favour of the respondent anyway and  therefore the appellant had to wait  until that  predetermined decision is out  before  seeking  to set  it aside.

84. Bias is never real.  It is perceived and inferred from the conduct of a judicial officer in exercise of his or her judicial authority and power.

85. Although the trial magistrate’s comments  that she  did not  comprehend the  defence counsel’s  sentiments  in view of  her elaborate explanation, this court  does  comprehend  the concerns  raised  by Mr Kinyanjui, whose  efforts  to make  the court understand  his predicament  came to naught.

86. This is what the trial magistrate stated:……..“However the proper procedure is for counsels to wait for the judgment   to be delivered and proceed to make an application to set aside.”

87. And when the judgment was finally delivered it was in favour of the plaintiff.  But when Mr Kinyanjui  applied to set it aside, his  client’s  application was  dismissed with costs,  with the  trial magistrate’s  outpouring  frustrations and lamentations  of how she had  over indulged  the  defendant’s  counsel.

88. Albeit the trial court  observed  in that impugned ruling observed that it had given the defence counsel  a chance to validate   his defence and that he  had failed to do so, the record  does not  even  reveal that she granted the application for leave to amend  the defence or at  all.  It is therefore not clear what “validation” the trial magistrate was referring to in her ruling and which the defence   counsel had abdicated.

89. In my humble view, the trial magistrate did not   exercise her discretion judiciously when she dismissed the defendant/appellant’s application for setting aside the exparte judgment.  I also  find that  the conduct  of the proceedings  did not  accord   the  defendant  a fair  sense  of justice   and  fairness before the trial  court.

90. I further find that the trial court wrongly exercised her discretion in dismissing the appellant’s application.  She did not exercise that discretion based on any of the established legal principles which I have enumerated in this judgment.

91. What this appeal called for is indeed, interrogation  of the  exercise if judicial discretion  by the trial  court and  in such interrogation, this   court has  been fortified   and guided  by the  principles  enunciated    in Shah  V Mbogo (supra) and Sielle Vs  Associated  Motor  Boat Company Ltd   (supra) cases as well as well as in the  Pil Kenya Ltd Vs Oppong  [2009] KLR  442 where  the Court of Appeal  made it  clear that the  appellate court should not interfere  with judicial discretion exercised by the trial court unless  it is  satisfied  that the  trial  judge/court  misdirected  himself/itself  in  some material  respect  by either  failing  to take into account relevant matters or taking into  account  extraneous  matters  and as  a result arrived  at a wrong  decision, or that it is  manifest  from the case  as a whole  that the trial  judge  was clearly  wrong  in the exercise  of discretion and occasioned injustice by such wrong exercise.

92. In the instant  case, and upon assessment  of the case  as a   whole, I have come to an  inescapable  conclusion that the trial magistrate  misdirected  herself in failing to take into  account  relevant  matters  which I have  set out   including  the procedure  to be  applied  where  there is an  application   for leave to  amend   pleadings; she failed to  appreciate the fact  that there  was an  application  for leave  to amend  the defence pleading which application  had  to be  disposed of before  hearing  the main  suit; she failed  to  consider  the legal  principles  applicable  in application for setting  aside  exparte judgment  and only  concentrated  on the “ intimidations” allegedly exhibited by the defence   counsel  which in essence clouded her sense  of justice for the defendant litigant.

93. This is not to say that this court’s decision would have been different, but as was held in Equity Bank Limited Vs West Link MBO Ltd, Civil App No.  78/2011:

“courts  of law exist to administer justice  and in  so doing  they must of necessity  balance  between the  competing  rights and interests of different parties  but within  the confines  of the law, to ensure  the ends of  justice  are met.  Inherent  power is the  authority  possessed  by a court   implicitly  without  it being  derived  from the  Constitution  or statute.”

94. From the trial  record  as analyzed  herein, I am  persuaded, and  it is  manifest   that the trial  magistrate  was clearly  wrong  in the exercise   of her discretion  and which wrong exercise  occasioned a miscarriage  of justice  to the appellant. And if there had been any delay then that   delay cannot be attributed to the defendant appellant herein as the respondent’s counsel   wished this court to believe.

95. The delay is because of  wrong exercise of discretion  by the trial court with the  aid of  the respondent’s  counsel  who did  not appreciate  the necessity to accord  d the defendant  an  opportunity  to adequately  prepare its pleadings  before a hearing  of the case  could  commence; and as concerns  this appeal, which  has taken  nearly  13 years  to be  determined, I have  not  seen from  the record, how the  appellant  caused  the delay as the  matter has  been active  throughout  and during the lapse, no  application  to dismiss  the appeal  for want  of prosecution was ever  filed  by the respondent  to demonstrate   his vigilance.

96. In addition, and  as earlier  stated, for the  last one year  when this judgment  ought  to have  been delivered  after  the hearing  of the appeal by Onyancha J(as he then was), the learned  judge  retired  necessitating the typing of the proceedings and the files  reassigned to judges in the Civil Division  of the High Court  for writing  and delivering of the judgment. Again, after I was assigned the file herein, among other files, in June, 2016 I was deployed to the Judicial Review Division, an equally busy Division.

97. In the end, I find that this court would be justified in the circumstances of this case to interfere with the discretion of the trial court.

98. All the above factors have contributed to the delay.  Needless to say that all documents/exhibits which the respondent produced in the lower court are insitu the original record. Therefore, a retrial would in no way prejudice the respondent, who will have his day in court and let the appellant too have his day in court to defend the suit.

99. For the aforestated  reasons, I find this appeal highly meritorious on all fours  and proceed  to allow it  and  make the following  orders:

1. That this appeal be and is hereby allowed.

2. The order  of the trial magistrate   dismissing  the  application for setting aside the   exparte  judgment  delivered on  6th February  2003 is  hereby vacated  and  set aside and substituted with an order  allowing the application dated 19th May 2003.

3. The proceedings, Judgment and decree of N.A. Owino (Mrs) Senior Resident Magistrate (as she then was) in Nairobi CM CC 5380/2001 be and are hereby vacated and set aside.

4. The appellant’s application to amend the defence be reconsidered and Nairobi CMCC 5380/2001 shall be reheard afresh before any other magistrate of competent jurisdiction as Mrs N.A. Owino has since left the judiciary.

5. That each party shall bear  their own costs   of this appeal  and of the application   dated 19th June  2003 in view of the fact that   the respondent  found himself   in the legal  intrigues  and therefore  he should not  be prejudiced with an  order of costs against him especially after such a long wait for justice.

6. As this matter is too old, I direct that the trial record shall be expeditiously resubmitted to the Chief Magistrate’s Court at Milimani Law Courts for mention on 10/11/2016 for directions.

Dated, signed and delivered at Nairobi this 3rd day of November, 2016.

R.E.ABURILI

JUDGE

In the presence of:

Mr J.H. Kinyanjui for the appellant

N/A for the respondent

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