Kerich & another v Ngoge Peter Odiwuor t/a O.P Ngoge & Associates Advocates & another [2022] KEHC 16155 (KLR)

Kerich & another v Ngoge Peter Odiwuor t/a O.P Ngoge & Associates Advocates & another (Civil Case 390 of 2011) [2022] KEHC 16155 (KLR) (Civ) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16155 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 390 of 2011

JK Sergon, J

December 9, 2022

Between

Charles Kerich

1st Plaintiff

Kalekye Mumo

2nd Plaintiff

and

Ngoge Peter Odiwuor t/a O.P Ngoge & Associates Advocates

1st Respondent

Eric Orina

2nd Respondent

Ruling

1. The plaintiffs through an application dated July 28, 2021 sought the following orders:i.Spent.ii.That there be a stay pending judgement and all consequential orders therein pending the hearing and determination of the application.iii.That the honorable court be pleased to set aside/vacate the judgement in its entirety and all consequential orders and directions issued therein.iv.That the honorable court be pleased to set aside/vacate or vary the proceedings of July 15, 2021 and all consequential orders and directions issued therein.v.That the honorable court be pleased to reopen the case for the plaintiffs to be heard on the counterclaim.vi.That the honorable court be pleased to grant the applicants herein a hearing date to further the defence case on the counterclaim.vii.Costs of the application.

2. The background of this case is that on July 6, 2021 there was a hearing of the counter claim in court. Mr Ngoge appeared for the 1st defendant. However, neither the plaintiffs nor their counsel appeared in court that day. The hearing proceeded in their absence. Parties were asked to file written submissions and a mention date of July 22, 2021 was given.

3. On July 22, 2021, Mr Ngoge for the defendant and Mr Ayugi holding brief for Mr Otiende appeared. A judgement date of October 18, 2021 was given. Before the judgement was delivered, the plaintiff filed the present application. Both parties chose to canvass their respective arguments through written submissions.

4. Counsel for the plaintiff submits that on February 18, 2021 he was served with a hearing notice for the hearing on July 6, 2021. On the hearing date he logged in to the court via the court link as early as 8:45am. At 9:00am however there was power supply failure in the whole building in which repairs lasted the whole day. As a result of the breakdown, he was not able to log in to the court and attend the hearing. The hearing of the counterclaim was done in the absence of the plaintiff and the court closed the case directing filing of submissions. He relied on the case of Wachira Kerai v Bildad Wachira [2016] eKLR where the court explained on the grounds for setting aside an ex parte judgment/decree.

5. Mr Ngoge, counsel for the 1st defendant submits that the plaintiffs and their advocate on record deliberately obstructed the course of justice and subverted the rule of law by lodging the current suit against the 1st defendant to challenge the ruling which was rendered in favor of the 1st defendant by the Hon Lady Justice Rawal on the March 29, 2011 in Nairobi HC MISC Application No 883 of 2007. He submits that the plaintiffs should have instead lodged an appeal. He relied on the case of Shah v Mbogo (1967) EA 116 which was cited in the case of U-haul vehicle ltd v Kiambu Dandora Co Ltd and 5 others (2021) eKLR where the court stated that:“The courts discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident inadvertence or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the course of justice.”

6. He further contends that the plaintiffs and their advocates lied on oath to the honorable court when they stated in their application that they were not served with the defence and counterclaim and hence do not have the knowledge of its contents.

7. He submits that in his replying affidavit he produced annexures marked “PON3” being copies of the plaintiffs reply to the statement of defence to the said counterclaim filed on October 24, 2011 by the plaintiff’s law firm. Counsel further submitted that the plaintiffs and their advocates are in contempt of the decree given by the Hon Lady Justice Rawal in Nairobi HC MISC Application no 883 of 2007 to the detriment of the 1st defendant herein. He contends that if the plaintiffs want the court to reopen this matter, they must first honor and satisfy in full the said decree or deposit in court the sum of Kshs 4,5 million to secure the decretal sum as awarded in favour of the 1st defendant.

8. The main issues for determination are whether the court can set aside/vacate the proceedings of 15th July and reopen the case for the plaintiffs to be heard on the counterclaim.

9. The decision to set aside orders is discretionary as discussed in the case of Wanjiku Kamau v Tabitha Kamau & 3 others 2014eKLR; where the court stated that: -“The court has the discretion to set aside judgement or order and there are no limitations and restrictions on the discretion of the judge except if the judgement or order is raised. It must be done on terms that are just.”

10. Section 3A of the Civil Procedure Act provides that:‘Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.’

11. The court in the case of Wachira Karani v Bildad Wachira [2016] eKLR rightly explained the conditions to be met by the parties when seeking the court’s discretion in setting aside and order. It was stated thus:“The fact that setting aside is a discretion of the court is not disputed. What is contested is whether the applicant has demonstrated ''sufficient cause" to warrant the exercise of the courts discretion in its favour. I again repeat the question what does the phrase "Sufficient cause" mean. The Supreme Court of India in the case of Parimal v Veena observed that: -"sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"

12. The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgement impugned before it.

13. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.

14. The plaintiffs’ advocate submitted that his non appearance during the hearing date on July 6, 2021 was caused by a power failure in their building which disabled him from logging in the virtual court link. He states that he had duly logged on to the link at 8:45 am before the power outage. He contends that the electricity and internet interruptions were beyond his control.

15. On the face of it, one can conclude that this was indeed a matter that was beyond his control but looking further into the matter, the question as to whether there were no alternatives arises. Logging into a court session does not strictly require the use of a laptop or a desktop computer. Was everybody’s phone in the firm affected by the power failure? Counsel could have simply logged in using a smartphone, explained his situation and sought directions from the court.

16. In addition, the plaintiffs’ vigilance in prosecuting their suit is questionable. As much as they have a right to be heard under article 50 of the Constitution of Kenya, 2010, they have to show that they truly want to be heard. This is an old matter as said by the 1st defendant’s counsel in court. The plaintiffs state that the defendant will not suffer prejudice or damage that cannot be compensated by way of costs. They should bear in mind that the costs they speak of are worth eleven years of delay in prosecuting their suit.

17. Counsel also stated that he has no knowledge of the defence and counterclaim as he was not served with the same. This was among the reasons as to why their defense case on the counterclaim should be heard. However, this has been disproved by the 1st defendant’s counsel who attached annexure “PNO3” as evidence against the same. I have perused the annexure and found that indeed the plaintiff was served with the defence and counterclaim and replied to the same.

18. Nevertheless, the plaintiffs’ wishes are that the proceedings and consequential orders of July 15, 2021 be set aside. Their application, though affecting the whole suit, relates to that particular day. The court in Wachira Karani v Bildad Wachira [2016] eKLR(supra) stated that the test to be applied was whether the party honestly intended to remain present when the suit was called for hearing.19. In CMC Holdings Ltd v James Mumo Nzioka it was held thus:“The discretion that a court of law has, in deciding whether or not to set aside ex-parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.”

20. Non-appearance due to power failure can be excusable, moreover, counsel submitted that he logged in at 8:45 am ready for the hearing. But for the power failure he would have remained in session. However, as stated earlier, there were alternatives available for the plaintiffs’ counsel.

21. The matter came up for hearing on July 6, 2021. The current application was filed on July 28, 2021 which I do find to be prompt reaction on the part of the plaintiffs. The underlying objective is to do justice to both parties. The case was fixed for hearing and counsel for the plaintiffs was ready to proceed only to be hampered by power failure.

22. There is no evidence that the explanation on the part of the plaintiffs’ counsel is an afterthought. The plaintiffs are entitled to be heard. This court imposed conditions in relation to Nairobi High Court Miscellaneous Application No 833 of 2017. That is a separate matter which can be pursued independently.

23. I do find that the application dated July 28, 2021 is merited and is allowed thus giving rise to issuance of the following orders:i.The order closing the case is set aside.ii.The case is reopened for the plaintiffs to be heard on the counter-claim.iii.This suit is fixed for further hearing on March 14, 2022. iv.Each party to meet his or her own costs on the motion.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022……………………………J K SERGONJUDGEIn the presence of:………………………………. for the 1st plaintiff/applicant....................for the 2nd plaintiff/applicant………………. for the 1st defendant/respondent........................ for the 2nd defendant/respondent