Justa Wawira v Ginza Motors Limited [2015] KEHC 556 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  98   OF 2012

(ARISING FROM THE RULING AND ORDER OF HONOURABLE C. OBULUTSA (MR) SENIOR RESIDENT MAGISTRATE AT MILIMANI COMMERCIAL COURT MADE ON 9TH FEBRUARY 2012 IN NAIROBI CHIEF MAGISTRATE’S COURT CIVIL SUIT NO. 14231 OF 2004)

JUSTA WAWIRA ………………………...APPELLANT

VERSUS

GINZA MOTORS LIMITED  …………RESPONDENT

JUDGMENT

This appeal arises from the ruling and order of Honourable C. Obulutsa (Mr) Senior Resident Magistrate at Milimani Commercial Court made on 9th February 2012 in Nairobi Chief Magistrate’s court civil suit No. 14231 of 2004.

The appellant herein Justa Wawira was the plaintiff in the court below.  She  filed suit   against defendant/respondent herein Ginza Motors Ltd & 2 others  seeking for  special damages  and general damages following a traffic road  accident  which occurred  on 24th May 2002  along Thika  Nairobi road  in Nairobi involving  motor vehicle  registration No.  KAM 073 U wherein the appellant was traveling as a lawful passenger.

The original  plaint dated 22nd December  2004  was filed on the same  day against Michael Kamau  Githuka  who  was  the alleged driver, agent  or servant of the 2nd defendant  Simon Chege  alleged to be  the owner of  the accident motor vehicle  registration No.  KAM 073U.

The said plaint was amended on 23rd March 2005 introducing (enjoining) the respondent herein Ginza Motors Ltd as defendant and striking out Michael Kamau Githuka from the proceedings.  The amended plaint also changed the date of accident from 16th July 2003 to 24th May 2002.

The defendants filed defence to the plaintiff’s claim, denying the claim.  The plaintiff’s suit was heard and judgment delivered on            9th February 2008 in her favour.  The trial magistrate Honourable A.N. Ongeri (Mrs) found the respondent herein and one Simon Chege, jointly liable in negligence at 100%.  The trial  magistrate  found that  the respondent  herein  was liable  as it was the registered owner  of the accident motor  vehicle at  the material time while Simon Chege  who was the 1st defendant  was also  held liable  for being the  beneficial  owner of the  accident motor vehicle  and the two were to compensate  the appellant/plaintiff  shs 300,000/- general  damages  for pain and suffering  and shs 3100 special damages  together with  costs of the  suit and  interest at  court rates.

By an application dated  1st August  2011, the law firm  of Ameli  Inyangu & Partners filed  an application seeking leave  to come on record  for the  respondent  in the place   of Oruko, Imende  & Kiriko advocates.  They also  prayed for  stay of execution   of decree  issued  in respect  of the judgment  and lastly but more importantly, they  sought, on behalf of the respondent herein  an order  setting aside  the judgment  made  on  9th February  2008 and all consequential  orders  made  there under, and for  leave to be  granted  to the respondent to defend the  suit  by  giving  evidence  in  the matter.

By a ruling delivered  on 9th  February  2012  by Honourable  Obulutsa, then Senior Principal Magistrate, the court  below set  aside the  judgment entered  and directed  that considering the age of the case, did not  set aside  the proceedings  as getting  the witnesses  may  be difficult.  The court therefore only  allowed the   2nd defendant/respondent  herein to  present its  case from  where  the plaintiff had  closed her  case and  ordered costs  to be  in the cause.

It is that ruling of Honourable C.Obulutsa (Mr) Senior Resident Magistrate delivered on 9th February 2012 that provoked this appeal by the appellant.

The appellant’s Memorandum of Appeal dated 9th March 2012  and filed  on 12th March  2012 sets out  7 grounds of appeal namely:-

The learned magistrate erred in law and fact when he failed, as he did, to find that there was a proper ground in law or otherwise to set aside the judgment entered on 19th February 2008.

The learned magistrate erred in law and in fact when he failed, as he did, to find that there was inordinate delay in making the application dated 1st August 2011 by the respondent.

The learned magistrate erred  in law and  in fact when  he found, as he did, that  there was merit  in the said application  dated              1st August  2011  as consequently  set aside  a judgment entered after  the respondent  was granted  a very  reasonable  opportunity to be heard  and after about  4 years  from the date  of the said judgment.

The learned magistrate erred in law and in fact by failing to consider the merited submissions by the appellant in making his ruling on the application dated 1st August 2011.

The learned magistrate erred  in law and  in fact by relying  on irrelevant  and extraneous  issues   in arriving  at the   erroneous decision  to set aside the judgment and  hence  failing to  appreciate  that justice delayed is justice denied.

The learned magistrate erred  in law and  in fact by failing, as he did  to exercise  his discretion  in favour of  the appellant  and thereby  resulting in great  injustice   to the appellant  in the circumstances.

The learned magistrate erred  in law and  in fact, as he did, when  he arrived at his decision to allow the respondent’s application dated  1st  August  2011 when replying  on relevant  and/or  nonexistent  evidence  and disregard  the relevant facts  and evidence  on record and thereby misdirecting  himself  and arriving  at an erroneous  decision.

The appellant  prayed that  this appeal  be allowed , setting  aside  the ruling of  Honourable C. Obulutsa (Mr)  Senior Resident Magistrate  delivered on  9th February  2012 in CM CC 14231/2004 and be  substituted  with an order  allowing  the appellant  to proceed  with execution  of the judgment  and decree given on 19th February  2008 and an order  for  costs  of the application dated  1st August  2011  and   costs  of  this appeal in favour of the  appellant against  the respondent.

This appeal was admitted to hearing on 19th May 2014 by Honourable Justice Waweru J and on 21st July 2014 directions were given. The parties’ advocates agreed to have the appeal disposed of by way of written submissions.  The appellant filed    hers on 8th August 2014 whereas the respondent filed on 16th October 2014.

The appellant consolidated grounds 1, 2, 3 and 4 and argued them together as one.  It  is submitted that the respondent  and its advocate  having failed to attend court for defence case hearing on  27th September 2007, its  case was closed.  That they were duly served for that date.  That before judgment date, the matter was mentioned in court severally. The appellant accused the respondent of indolence which fact, it was submitted, the trial magistrate ignored in setting aside the judgment.  it was submitted  that the  respondent’s indolence  is inexcusable  as they stayed for nearly  4 years  without  enquiring  from their advocates  on record  on how the  suit in court  was progressing  hence  they cannot  hide behind  their advocate’s failure to inform them of the  court proceedings.

The appellant’s counsel relied on the case of  Josephat  Nderitu Kariuki  vs Pine  Breeze Hospital Ltd [2006] e KLR  where  the court held that

“……..the discretion is intended to avoid hardship resulting from inadvertence or a mistake but not to assist a party who has sought to delay or obstruct the course of justice.  The defendant chose their advocate who failed to attend court.  This is a proper case where an advocate should bear the consequences of their own professional negligence of failure to attend court on behalf of their clients.  Similarly the client should bear the consequences of their choice of his legal fees…..”

The appellant urged that the lower court should have followed the above principle since the respondent chose counsel who did not inform them of the proceedings. Further, that the respondent had recourse against his counsel elsewhere relying on Hezron Tirimba Mucheka  vs Alfayo Omesa  Omangi  HCC 14/2003.  It was argued that the trial court erred in punishing the appellant for the indolence of the respondent and their advocate.

In support  of  grounds 5,6 and 7 of the memorandum of Appeal, the  appellant’s  advocates  argued that  under Order  12 Rule 7 of the Civil Procedure Rules,  the court  can only exercise  discretion  when it is  given reasons  for default  which the  respondent  failed to  avail in support of their application for setting aside  judgment.  Further, that the judgment entered was not exparte as the respondent was well aware of the trial. The appellant’s  counsels  further submit that the application by the respondent  also  contained  a prayer   for amendment  of the defence  which was  denied  as it  was being  sought after judgment  hence, it follows that without  such an  amendment, the respondent’s  defence  as it in record does not  raise any triable   issue; relying on the case of  Stephen  Isoe Nyaribo  vs Samuel Orindo  Manani & Another [2006] e KLR, and arguing  that: ………where  a judgment  has been regularly  entered  it can only set  aside on grounds that  would assist  in the promotion of justice between the parties  to the suit and  the conduct of  the  defendants precludes the court  from interfering  with  the judgment  entered in favour of the plaintiff.

In the appellant’s view, the trial court  exceeded  its jurisdiction  by setting  aside the judgment  to allow the  respondent  to defend  their case even when they  had  continuously exhibited  blatant  disregard  of the law,  relying  on the case  of Adero & Another vs Ulinzi Sacco Society Ltd.  The appellant counsel  urged this  court to  exercise its discretion  to allow  the appeal by setting aside the order that set aside  judgment and the judgment be reinstated   to enable the   appellant to proceed  with execution of the decree.

In opposing this appeal, the respondent’s counsel submitted that  the respondent sought for  orders of setting aside  the judgment and grant of leave  to defend the suit by giving evidence  on the matter, not  to amend  the defence  as alleged  by the  appellant. Further, that the judgment entered  was  exparte since  the respondent  never gave  up its  right to call witnesses to testify  as its  defence  could not be substituted  with written submissions.  Counsel  supported the trial magistrate’s order  which he stated that it  took into account the  justice to  the parties that would be  served, considering  the circumstances of the case  since there  was a valid defence  on record denying ownership of motor vehicle KAL 739 J and  or being  in any way responsible  for the accident involving  motor  vehicle  KAM 073U.  That  its failure to participate  in the proceedings  was occasioned  by the mistake  of  its advocate on record  who never  notified the client/respondent  of the progress  in the matter. That the  accident motor vehicle  had been sold to the 1st defendant  and  therefore  the respondent  could not be  liable   where the motor vehicle  did not  belong to it at  the time of accident as the evidence was abundant  that the 1st defendant  owner had insured it  with  United Insurance  Company Co. Ltd.  In addition, it was submitted on behalf  of the respondent  that being the registered  owner is only prima facie evidence of ownership of the vehicle but there  was evidence  to rebut that presumption and that  it is  for that reason that the trial court  had found that the  1st defendant  was the beneficial owner  thereof.

The respondent contended that therefore failure to set aside the judgment would cause a grave injustice   to the respondent as it has a defence that raises serious triable issues   which should go to trial for adjudication. Further, that the discretion  to set aside judgment  is unfettered  judicial discretion to ensure  justice is  done to both parties which  discretion is intended to avoid hardship resulting accident, inadvertence  or excusable  mistake or  error, not  exercised to assist those  who have  deliberately sought for obstruct the course of justice. Citing  the  case of  Patel vs EA Cargo  Handling  Services Ltd (1974) EA  75 and Shah vs Mbogo (1967) EA 116 at 123  and Shabir  Din Vs  Ram Parkash Anand (1955) 22 EACA  48, the respondent maintained  that it had  a good defence and that  where it was clear that  the default  was due to its legal advisers  even though negligent, the discretion of the court  may be exercised  depending   on facts  of the case in issue.

The respondents urged the court not to  interfere with  the discretion   of the trial  court as the  appellant  had not  demonstrated that the  lower court  misdirected itself resulting  in a  wrong decision /and  or that the trial magistrate was clearly wrong in  the exercises  of his discretion that occasioned  an injustice  upon the  appellant.  That the appellant was seeking  to fetter  the discretion of the  courts  when considering  applications under Order 12  of the Civil Procedure  Rules.

The respondent  maintained  that the fact  that not all  the proceedings were set aside  was  an indication that the trial court considered  justice  for both parties  to avoid an injustice/hardship of the appellant going through a fresh trial  while  according the  respondent  an opportunity to  be heard  in defence.

That the  cases relied  on by the  appellant  on where there  was mistake  by counsel are not  binding  on this court  as courts decide  each case  based on its own  peculiar   facts relying  on Shabir  Dinwhere  it was held that:

“………….A  mistake  or misunderstanding  of the appellant’s legal advisors  even though negligent, may be accepted  as a proper  ground for granting relief, but whether  it will be  so accepted  must depend  on the facts  o the particular case.”

The respondent urged the court not to substitute  its  own discretion for that of the trial court  unless the lower  court misdirected  itself and  as a result  arrived at a  wrong  decision  which aspect is said to be lacking  in this case  and therefore  prayed  for dismissal  of the appeal with  costs to the respondent.

I have anxiously considered this appeal, submissions by  both counsels, in favour and in opposition to the  appeal and the  judicial  precedents  and procedural laws  relied on  in urging  their respective positions.  The Milimani CMCC 14231/2004 was instituted in 2004 and was heard on 13th April 2006 under certificate or urgency as the appellant was said to be relocating to the UK.

The record in the court below shows that on the date of 13th April  2006  when the hearing commenced, both defendants  were ably  represented  in court.  Mr Imende  represented  the  2nd defendant  whereas  Mr Okello represented  the 1st defendant, and Mr Gitonga  appeared  for the plaintiff. The  plaintiff /appellant testified  in the presence  of the advocates  for  both the defendants  who  did not  ask her any question after which  her case remained open and  the 1st defendant  Simon Chege testified  in defence stating that  he was the  owner  of the accident  motor vehicle  as stated by the police but  did not  understand  on what basis  police  formed  that opinion  as they  had  not informed  him whether  they got  the  information from its  insurance  Company or police abstract.  The first defendant testified that the vehicle was insured with United Insurance Company.

The record shows that  subsequent  to that hearing, there was no appearance    by the defendants  or their advocates  until  23rd July 2007  when PW2   a police officer  testified  for the plaintiff to the effect that the  accident motor vehicle  belonged to the 1st defendant  Simon Chege  who was  insured with United Insurance Company and that the accident  was reported  to Thika Traffic police station vide OB No. 12/24/5/2002.  The case  was then  adjourned to 27th September 2007 to call the  doctor  but the plaintiff’s counsel  abandoned the quest as  the documents  had been produced by consent and  the trial court  directed parties  to file submissions  for judgment  to  be delivered.

Until 19th February 2008  when judgment  was  delivered in favour of the appellant, the respondent herein and his co-defendant never  made appearances  in court, until 1st August 2011 when the  respondent herein filed  the application seeking to set aside  the judgment  delivered on 19th February  2008, hence the orders  of  9th February  2012  by Obulutsa (SPM) which  are impugned  herein.  The record  shows that  on all  those occasions  when the  case  proceeded  for hearing  before the  trial  magistrate, the respondents  advocates  on record   were served  with hearing notices.  They had even been invited on many occasions to send their representatives to attend at  the registry to fix hearing dates by consent but they never responded.  When the  appellant set  in motion  the process  of executing  decree  is when   the respondent  was awakened  and obtained   stay, culminating  in the  application to set  aside judgment entered, urging  that  their advocates  on record  never notified  them  on the progress of the matter.

The issue  for determination  is whether  the trial magistrate   was justified  in exercising his discretion to allow  the respondent’s  application setting aside  the judgment  entered  on 19th February 2008  and allowing  the respondent  to adduce  its evidence  in defence to the  claim by the appellant.

In setting  aside  the judgment  entered  in favour of the appellant  on  19th February 2008, it is  obvious  that the  trial  magistrate  was exercising  judicial  discretion.  It is  established  in our courts  as was set  out in  the case of  Mbogo & Another vs Shah EALR (1968) page 13  that an appellate  court  will not interfere  with the exercise of the trial judge’s discretion  unless it is  satisfied  that the judge  in exercising  his discretion  misdirected  himself  in some matters and as a result 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 mis-justice.

I agree  with those  very noble  principles  which have  stood the test of  times  and which go  further to  establish  that the courts’ discretion to set aside  an exparte  judgment or order  for that matter, is intended  to avoid  injustice  or hardship resulting  from an accident, inadvertence  or  inexcusable  mistake  or error  but not  to assist  a person who  deliberately seeks to  obstruct  or delay the  course of  justice.

I have deeply considered the respondent’s reasons  that were offered  in the lower court regarding  their failure to attend court for the hearing  of the case against  it on several occasions with an anxious mind. I have asked myself  whether their failure to attend court  and offer their  defence  constituted an excusable  mistake, an error  of judgment regarding  their advocate’s failure to notify  the respondents of the hearing  dates and  or progress  of the case before  the court.  I note  that on the day  the plaintiff and 1st defendant testified, the respondent’s  advocate  was in court  and did not  cross  examine the plaintiff  on her evidence.  Thereafter, the said advocate never made any appearances for the respondent.  On the other hand  the advocates for the 1st defendant  Simon Chege had  sought  and obtained  leave  of court vide  chamber summons dated   3rd April  2006  to cease acting.  That  was before the  plaintiff’s  advocates  by their application dated  10th April  2006  sought  to have the suit listed  and evidence  of the plaintiff taken  expeditiously to enable  her leave  the jurisdiction  of the court  as she  was to  relocate  to the United Kingdom, having  divested  her interest in Kenya.

The record, as I have stated  above  does not  reflect  any reasons  why the  respondent  or its advocates, Oruko Imende  & Kiura  advocates did not  attend  court after  the plaintiff and  the 1st defendant had testified on 13th June 2006 and on  all the subsequent  occasions  including the 27th September 2007 despite  the fact that  the record shows   that they were  duly served  for the hearing.  Neither  did they  file submissions  after the plaintiff’s case was  closed and  a date  for judgment  was therefore  set and judgment  delivered on 19th February 2008.

According to  the respondent, it was  not aware of all the above  happenings  until 15th July 2011  when Expeditions General Merchants  Auctioneers  proclaimed  its goods  and  on perusal  of the court file, it discovered  that the  matter proceeded  exparte  after  13th June  2006  as their advocates  could not  be traced at some point as their whereabouts  were unknown.

When  the plaintiff’s case was  closed  on 27th September  2007, on         2nd November 2007 the trial  magistrate  directed  that the defendants  to be served with notice  to file  their  submissions  and by the affidavit  of  service sworn by Sakana Kimarong  filed on  1st November 2007, the respondent’s   advocates were served  on 1st November  2007, with  the said  mention  notice  for  2nd November 2007 dated 26th October 2007.  The hearing notice for 27th September 2007 too dated 27th July 2007 was served upon the said advocate on 1st August 2007.

The record  further shows that the appellant’s  counsels diligently served  the respondent’s  counsel  with a mention  notice for  16th November  2007 when the  matter  was fixed for submissions /taking of judgment  date.  Their counsel were served on 14th November 2007 and an affidavit of service filed in court to that effect.

After the delivery of judgment, the  appellant’s counsels  took out a notice  to show cause  dated 13th January  2011 and there is  evidence that  the respondents  were served on 19th May 2011 for  hearing  of the said notice to show cause on 10th June  2011.  The process server  who effected  service  of Notice to Show Cause upon George O. Gawiri of the  respondent’s company deposes  in her affidavit  of service of 19th May 2011  that  she visited the respondent’s premises  located at Cannon Tower, along  Moi Avenue, Mombasa  who even gave  her his business card.  The respondents made no appearance  on 10th June 2011 to show cause and it was then that M.K. Kiema (Resident Magistrate)  issued an order directing the  warrants  of attachment  and sale of the respondent’s  movable  properties, which warrants  were issued to  Francis Muchiri t/a Expeditions  General Merchants  Auctioneers.

The affidavit  of Mohamed Amir sworn on 29th July 2011 at paragraph 9 states that the respondents  only learnt  of  the outcome  of the case   when the  auctioneers  proclaimed their goods on 15th July 2011  and further at paragraph 8  that their  advocates former  offices  in Kizingu, Mombasa  could not  be traced.  There is no mention of the Notice to show Cause served on them prior to the proclamation.

Counsels for  both parties  extensively submitted on their respective client’s positions  and cited opposing authorities, those  that favour  the setting aside  of judgment  on account of  counsel’s mistakes, and  those that are against, offering the applicant an alternative  remedy of suing  the offending advocate  for professional negligence.

I have considered all those authorities, the primary authority on setting aside judgment as I have stated is the cases of Shah vs Mbogo & Another (1967) EA 116 where it was held inter alia:

“ the discretion to set aside  an exparte 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.”

In the present case, the respondent  had filed its defence  denying  the appellant’s  claim and contending that it had  sold the  accident motor vehicle to the 1st defendant Simon Chege and surrendered  all the documentation to him  as well as  the motor vehicle albeit  the transfer  had not been effected.  However, the  motor vehicle  quoted in the defence  which is KAL 739 J  is different  from the accident  motor vehicle  registration number KAM 073U.

Counsel for  the respondent  has urged this court  to ignore  that as  being a  topographical error  whereas the appellant’s  counsel   contends  that to set aside  judgment  would also be allowing  the respondent  to amend their  defective  defence  which quotes  a different  motor vehicle  from the accident motor  vehicle, to cure the defect  which in fact, renders   that defence without  any triable  issue  and which amendment  would then  be taking effect  after judgment, contrary to the established  provisions  of the law.

The respondent urges the court to  consider all circumstances  of the case  and find  that  the defence  on record raises triable issues and decline to interfere  with the  discretion of the trial court by substituting  it with this  court’s own  discretion especially where  it is not  demonstrated  that the  trial magistrate  in exercising  that discretion, committed an error  of  principle.

In  the case of Patel vs EA Cargo  Handling Services Ltd, the court held that:

“ In considering  an application to set  aside  an exparte  judgment , the nature  of the action  should be considered, the  defence if any  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 a litigant  a hearing should be the last resort  of a  court.”

In this case, the trial magistrate in setting aside the judgment  and allowing  the respondent  to tender  its evidence  in defence  considered  that indeed there  was a defence  filed showing the motor vehicle was KAL 739J instead of KAM 073U  as per its  affidavit  and documents showing  they had  sold the accident motor vehicle  to the  1st defendant who had  failed to cause  transfer  effected in his favour. He also considered that in the circumstances, based on the facts and decision in Shah vs Mbogo (supra), the application should be allowed and that ‘the court should not shut out the 2nd defendant from justice for the fault of the other.”

In other words, the trial magistrate found  that the  respondent’s defence raised serious  triable issues  and secondly, that the respondent  was let down by its  advocates  who even pleaded the wrong  particulars of the accident motor vehicle  although all other facts  related  to the motor vehicle KAM 073U.

On  the issue  relating to mistake of counsel, the respondent  referred to several decisions  that favour the position that  such mistake is excusable  and should not  be visited  on the client/party.

In the Court  of Appeal  Case of  Belinda Murai & Others  vs  Amoi Wainaina (1978) KLR  2782, Madan  J.A (as he then was) described  what he considered  what he  considered  constitutes a mistake in the following words:

“A mistake is a mistake.  It is no less a mistake because it is unfortunate slip.  It is no less pardonable because it is committed by Senior Counsel.  Though in the case of junior counsel, the court might feel compassionate more readily.  A blunder on a point of law can be a mistake.  The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better.  The court may not condone it but it ought certainly to do whatever is necessary o rectify it if the interests of justice so dictate.  It is  known that courts of justice  themselves  make mistakes  which is  politely  referred to as erring  in their  interpretation of laws  and adoption of a legal point of view  which court of appeal sometimes  overrule.”

What I gather from the respondent’s plea is that it did not deliberately decline to attend court to give evidence since its advocate on record did not communicate any progress to it.  Further, that infact, the said advocate pleaded a wrong particulars of the accident motor vehicle yet it had given full instructions with correct particulars. Thirdly, that when execution process was set in motion, it tried to locate the said advocate’s offices but could not trace them.

I find that there was indeed, mistake of counsel, on the face of it for failure to communicate to the client. However, what the respondent did not inform the court below and this court is whether they had paid the said advocate their legal fees to enable   full representation. On the other hand, an advocate who has no instructions is provided with a legal avenue to cease acting for a party and claim his/her legal fees.

In this case, the court has not been told why the advocate chose not to attend court on behalf of his client and or why he did not notify his clients on the hearings that followed, despite being served with hearing as well as mention notices.

It is finally submitted that the advocate could now not be found!  The respondent did not allude to the deposition by the appellant  that they  were  served  with notices  to show cause  why execution  cannot issue before proclamation  of  their goods but that  they ignored  and only sought  to intervene  when attachment   was done by auctioneers.

In my view, the conduct  of the respondents  counsel M/S  Oruko Imende  & Kiriko advocates as officers  of the court  was deplorable  and unbecoming  and  must be condemned  as it was obstructive  to the cause of  justice.  It is therefore  expected that  the respondent  would  lodge  a complaint to the Law Society of Kenya against  them for  appropriate  disciplinary action to be taken  against  them.  It is  their  conduct of failing  to attend  court on behalf  of their client  and or informing  their client  the respondent  that led  to the case  proceeding  exparte.  If they had any issues with their client, they should have relinquished the brief. I find that it is that conduct/mistake of the firm Oruko Imende and Kiriko advocates  that denied  the respondents an opportunity to be heard  in defence. In Phillip Chemwolo &  another vs  Augustine Kubende (1982-1988) KAR  103 at  1040 Apaloo J. A. ( as he then was ) posited as follows:-

“ Blunders  will continue to be made  from time to time and it  does not  follow that   because a mistake  has been made that because  a mistake has  been made that  a party should  suffer the penalty of not having  his case heard  as merit.  I think  the broad  equity  approach to this  matter is that unless  there is fraud  or intention to overreach, there is  no  error or default that cannot be put right by payment of costs.  The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”

This court  however, does not  appreciate  the inconvenience  caused to the appellant by the delay, and default  caused by the respondent’s  counsel’s  failure  to attend court  and or inform  their clients  of the progress  of the matter on  several  occasions during the hearing and  or even notifying  them of the  judgment.  The said  advocates have not availed  themselves  to explain what caused  that default  and the respondent alleges that neither  have they   managed  to trace their  whereabouts.

In my view, that default and delay can be compensated with costs payable by the respondent for reasons that the respondents too have their own share of blame.  They did not seek to inquire of the case they were defending through their advocates.  They were also served with notice to show cause in May 2011 before the attachment was done in July 2011 and they only rushed to court after the attachment.

In my view, the trial magistrate did not err in exercising his discretion to set aside the judgment and in allowing the respondent to adduce evidence in defence of the claim.  He must have been advancing the overriding objectives in the administration of justice.

This court   too employs and embraces the principle that the right to a hearing is a well protected right in our Constitution. See Article 50(1) and is also the cornerstone of the rule of law.  That is why even if the courts  have  inherent  jurisdiction to dismiss  suits, this  can only be done in circumstances  that protect the integrity of the court  process from abuse that  would amount to injustice  and at the end of the  day, there should be proportionality.(see Richard Nchampi Leiyagu vs IEBC & 2 Others (2013)  eKLR where  the Court of Appeal  elaborately set out the  above principle, when setting  aside the  ruling of the Superior Court  (Wakiaga J).

The other ancillary question is whether the respondent’s defence raises triable issues. The respondent contends that it instructed the advocates to file defence in respect of the suit material vehicle being KAM 073 U and not KAL 739J cited in the defence. The  said defence  contends  that the respondent  has sold  the accident  motor vehicle  to the 1st defendant  prior to the accident  and surrendered  all documentation hence it had diverted itself  of any interest  in the motor vehicle  subject matter  of the suit. The appellant had pleaded that the 1st defendant was the beneficial owner of the accident motor vehicle whereas the respondent herein was the registered owner thereof.  The trial magistrate in her judgment found them liable for the accident in negligence.  In Shailesh Patel T/a Energy Company of EA vs Kessels  Engineering  Works  PVT Ltd  & 2 Others  (2014) e KLR , the Court of  appeal  stated that inter alia:

“……….this court has a wide discretion in setting aside exparte interlocutory judgments.  In the case of Patel vs  EA Cargo Handling Services Ltd (1974) EA 75, it was held  hat a regular judgment  will normally  not  be set aside  unless the court  is satisfied  there is a defence in its merits.  The main concern of the court is to do justice to the parties.  I have looked at the proposes defence.  It does not  appear  to me to  address the issue  in the same  way the defendant  has addressed  the issues  in this  application.  It does not strike met be a good defence.  However, a good defence does not mean a defence which must succeed.  It merely needs to satisfy the concept of a prima facie defence.  I will therefore give it a benefit of the doubt.  This brings me then, to the conditions upon which this court can set aside the said judgment.  The discretion of the court is unfettered, but if the judgment is to be set aside it must be done on terms that are just.”

Again   in Olympic  Escort  International Company Ltd & 2 Others  vs Parminder  Singh Sandhu  & Another  (2009)  e KLRthe Court of Appeal expressed itself  inter alia:-

“ with  that finding  it becomes  unnecessary to examine the merits of  the application under  sub Rule 2 (1)  of Order  35  to determine  whether  the  appellants  had shown b y affidavit  or otherwise  that they  should have  leave t defend the suit, either conditionally or unconditionally.  Even if we were to consider that issue, we would have found that there were prima facie triable issues raised in defence and the replying affidavit on record.  It is trite that, a triable issue is not necessary one that the defendant would ultimately succeed on.  I need only be bona fide.”

In Sultan Hardwares Ltd vs Steel Africa  Ltd (2011) e KLR  the Court of Appeal  also expressed  itself thus concerning  the right  to be heard on  merits:-

“ we are aware  that the suit  in the Superior Court  was not heard on merits  and what is at stake  before us  is whether the appellant should have  been  given an opportunity  to be heard  on its defence which had  been filed.  In  the case of  Lalli t/a Vakkep Building  Contractors  vs Casousel Ltd (1989) KRL 386 the  predecessors  of this court    ( Nyarangi, Platt, JJA and Kwach, Ag JA ) held that:

“Summary judgment is a draconian measure and should be given is only the clearest of cases.  A trial must be ordered if a triable issue is found or one which is fairly arguable is found to exist.”

In the early cases of Soliza Figuerido & Company Ltd vs Mooring Hotel Ltd (1959) EA 425 the Court of Appeal held that if the defendant shows   a bona fide triable issue, he must be allowed to defend without conditions…….”  And in Kenya Trade Combine Ltd vs Shah CA 193/99, the Court of Appeal stated:-

“In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial.  We  should hasten  to add  that in  this respect  adefence  which raises  triable  issues  does not  mean a defence that  must succeed.”

In Bangue Indosuez vs D.J. Lowe & company  Ltd CA 79/2002  and Momanyi vs Hatimy & Another (2003) 2 EA  600 the Court of Appeal was categorical that where  a bona fide  triable  issue has  been disclosed, the court has no discretion  to exercise in regard  to the defendant’s right to  defend the suit.

I have no reason to depart from those  noble principles  espoused in those cases of a Court Superior  to this court, as the  circumstances  of the case are  similar  to those  in the  many cases  that I have cited  hereto.

In this case, albeit  it has been  submitted  by counsel  for the appellant  that the respondent  should seek a  remedy  from their  advocates for the failure to attend  court and  or  whereas  I concur that a problem of  such nature should lead to settlement  between party and advocate, rather  than between one party (defaulter) and another ( the innocent) in Susan Njuguna  vs B.K. Teren & 2 Others (2005)  e KRL  per  Ojwang  J ( as he then was ) faced with  a similar  situation  held that:

“……Misunderstandings between advocate and client, therefore is not a proper factor to take into account in setting aside an interlocutory judgment. I have however,  read the plaintiff’s  proposed  defence counterclaim, and formed  the impression  that is squarely  joins issue  with the 3rd  defendant’s claims in the counterclaim; and the question emerging ought to be  resolved  in the context  of trial.”

The learned judge  in the above case  set side  judgment entered  on   27th November 2002 dismissing  the plaintiff’s  suit on conditions  including, directing  that the suit be set down  for hearing  within  specified  timelines  and default, the judgment  would revert.

In this case, I have considered  the defence  by the respondent and without delving into its  merits, I find that  it raises triable  issues which can and should be  resolved  in the context  of the full trial.  Among them, is whether  or not  the accident motor vehicle  KAM 073U belonged to the respondent herein  the 1st defendant  in the suit below, noting that albeit  the respondent  was the registered owner thereof, their affidavit  evidence and defence  was categorical  that they had sold it  and surrendered its  possession and documentation to the 1st defendant as at the  time of the  material accident.  Section 8 of the Traffic Act Cap 403 is clear that the registration of the ownership of a motor vehicle is prima facie evidence of ownership unless the contrary is proved.  Since ownership is denied, the issue in my view should be determined in a full trial by according the respondent an opportunity to be heard.

However, as I have stated, the default was not occasioned or contributed to by the appellant.  From the decisions that  I have referred to, and pursuant to the provisions  of Order 12 Rule 7 of the Civil Procedure Rules  which provides that  “ where under  the order judgment has been entered  or the suit has been  dismissed, the court, on application, may  set aside or vary the judgment  or order upon such terms  as may be just.”   The trial magistrate  ordered  that costs be  in the cause.  In my  view, albeit  costs are in the discretion of the trial  court, the fact that  the issue  was between the respondent  and their advocate  which had created  an inconvenience  to the appellant  who had  a lawful judgment  on record, costs   should have been awarded  to the appellant, to compensate  her for the  inconvenience.

Invoking the provisions of Section 78 of  the Civil Procedure Act, Cap 21 Laws  of Kenya, which empower  this  court to as the first appellate court to among others, exercise the same powers and perform as nearly  as may be the same duties  as are  conferred  and imposed  by the Act  on courts of  original jurisdiction in respect of the suit instituted  therein, I set aside  the order on costs  and substitute  thereof  with an order that  the respondent  pays the costs of the  appellant in the application for setting  aside the judgment.

For all the above reasons, I dismiss the appeal herein.  I however order that  the respondents  pay costs of this appeal to the appellant  for reasons that they were indolent  in failing  to consult/inquire  from their advocates  the position/progress of the case and that  they never  turned up for the Notice to show cause  before the attachment  in execution of decree, thereby seriously inconveniencing the appellant.

Dated, signed and delivered in open court at Nairobi this 9th day of July 2015.

R.E. ABURILI

JUDGE

9/7/2015

Coram R.E. Aburili J

C.A. Samuel

Mr Inyangu for respondent

No appearance for appellant.(date was given in court)

Court – Judgment read and pronounced in open court.

R.E. ABURILI

JUDGE

9/7/2015