Fred Juma Wandabusi & another v James K.S. Mukhale [2014] KEHC 1943 (KLR)

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 2 OF 2012

FRED JUMA WANDABUSI

WILBERFORCE KEITH WAFULA …..................... PLAINTIFFS

VERSUS

JAMES K.S. MUKHALE…..............................................DEFENDANT

RULING

1. The applicants who are the plaintiffs have  moved this court under section 3 and 3A of the Civil Procedure Act seeking orders of setting aside this court's order dismissing their suit.  The application is  supported by two affidavits sworn by the 1st applicant and Mr. Paul Juma, advocate.

2. The application is opposed by defendant/respondent  vide a   replying affidavit filed.  The counsels for the parties then made oral submissions. Mr. Sichangi has submitted that  the  plaintiffs were never informed of the hearing date and only learnt about dismissal of their  suit when the auctioneers pounced on their  goods.   The advocate also stated that setting aside is a discretionary  exercise therefore failure to  disclose  the rules under which the application is brought is   not fatal.

3.  The respondent submits the application  is incompetent having failed to state the orders under which it is brought.  Mr. Murunga further submitted the applicant did not depose that his previous advocates on record Ms. Wanyonyi Korir & Co. advocates had closed shop hence such submissions  coming from the bar should be disregarded.  He urged the  court to dismiss the application with costs to the respondent.

4.  Under Order 12 rule 7, the court on an application being    made, may set aside or vary judgment upon such terms     as  it deems fit.  In the case of Pithon  Waweru Maina vs. Thuka Mugiria [1983] e KLR, the court of appeal stated    that principles governing the exercise of  the court's discretion in setting aside exparte judgments. These    include but not limited  to that there are no restrictions or limits on the             judge's discretion. Secondly the main aim of   the court is to do   justice to the  parties. The  court  of  appeal  also referred to the case of Patel Vs. E.A. Cargo Handling Services Ltd. [1974] E.A. 75 which held that the  exercise of such discretion is to avoid injustice orhardship resulting from inadvertence, excusable error or  mistake etc.

5. The question this court will try to  answer  in regard to the present application is whether the applicants herein deserve the  exercise  of  the  court's discretion to  set aside   the order dismissing  the suit.  The applicants explanation   for not attending court on the day  fixed  for hearing is because they were never informed  of the hearing date by their advocates previously on record.    Mr. Juma advocate who held brief  for the former advocates indicated his  instructions were limited to seeking an adjournment as he had been given the file in court. Although the respondent indicated that the applicants did not depose   that the said firm of Wanyonyi Korir  advocates had  closed shop and    evidence from the bar on this information should be disregarded.  This court  takes  judicial notice of the fact  that she has never seen any advocate from that  firm  appear before her for the two years she has worked in Bungoma.  Consequently I can safely presume that the said advocates   may never have   informed the applicants of the date of  9th July 2013 when the matter came up for hearing.  Such mistake of counsel should not be  visited on his client  and falls within the category of excusable  mistake.  I do find that  on  this basis, the applicants deserves   exercise discretion of the court in their favour.

6. This court grants the prayer (d) in the application and set aside the order of 9th July 2013 dismissing the plaintiffs suit and all consequential orders. The plaintiffs/applicants however did not demonstrate to this court from the inception of their suit  what they did to  facilitate the suit being             heard.  Public policy requires that litigation  should have an end and   the exercise of this discretion is upon such terms as the   court deems just.  The defendant's counsel  attended    court   on 9th July 2013 and was ready to proceed. For their attendance and  action,  I will therefore make an order that     the applicants pay the defendant Kshs. 15,000/= as thrown away costs within 45 days of this ruling  in default execution  to issue.  The applicants deposed that the auctioneers carted away their goods without serving them with notice (proclamation) first.  This   action was not submitted on by     the parties but since the setting aside affects the auctioneers action, it is imperative that I make an order as regards their  costs. In the  interest of natural justice I order that   the auctioneers file an application  for the  court to determine whether he is   entitled to costs or not. Parties are however at liberty to  negotiate the auctioneers  issue without filing a formal application to enhance the chances of the substantive suit being  set down for  hearing.  The costs of this application  awarded to the respondent.

DATEDand Delivered at Bungoma this 2nd day of October 2014.

A. OMOLLO

JUDGE.