M’Chabari Kinoro v Isaiah Nkoroi Muriungi,Jeremiah Nyaga Muriungi,Jacob Gitonga Muriungi, Elivase Mutegi Kajieta, The District Land Registrar Tharaka South & The Honourable Attorney General [2018] KEELC 1936 (KLR) | Setting Aside Ex Parte Judgment | Esheria

M’Chabari Kinoro v Isaiah Nkoroi Muriungi,Jeremiah Nyaga Muriungi,Jacob Gitonga Muriungi, Elivase Mutegi Kajieta, The District Land Registrar Tharaka South & The Honourable Attorney General [2018] KEELC 1936 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO. 210  OF 2017

FORMERLY MERU ELC. 246 OF 2016

M’CHABARI KINORO................................................................................PLAINTIFF

VERSUS

ISAIAH NKOROI MURIUNGI........................................................1ST DEFENDANT

JEREMIAH NYAGA MURIUNGI..................................................2ND DEFENDANT

JACOB GITONGA MURIUNGI.....................................................3RD DEFENDANT

ELIVASE MUTEGI KAJIETA........................................................4TH DEFENDANT

THE DISTRICT LAND REGISTRAR THARAKA SOUTH.......5TH DEFENDANT

THE HONOURABLE ATTORNEY GENERAL...........................6TH DEFENDANT

RULING

1. This application is dated 31st May, 2018. It states that it has been brought to court under Order 12 Rule 7 of the Civil Procedure Rules, Sections 3 & 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya. It seeks the following orders:

1.  The judgment of the court delivered on the 21. 2.2018 be set aside and the suit be heard de novo.

2.  Costs of the application be costs in the main suit.

2.  The application has the following grounds:-

i. The hearing of the case proceeded ex-parte in the absence of the defendants.

ii. The applicants did not get an opportunity to be heard in the case, leading to a judgment that will see them evicted from their lands and rendered destitute with their families.

iii. The judgment need to be set aside in the interest of justice and fair play.

iv. No prejudice will be occasioned by the orders if granted.

3.  The application is supported by two affidavits both were filed on 31st May, 2018.

4.  The affidavit filed by the 1st defendant states as follows:

I, ISAIAH NKOROI MURIUNGI adult male of Kamaindi Location do hereby make oath and solemnly make oath and swear as follows:-

1. That I am the 1st applicant/defendant herein and I am competent to swear this affidavit in support of the motion dated 17. 5.2018.

2. That after service of the summons herein, (sic) instructed the firm of Murango Mwenda & Co. Advocates to file defence herein, which was done.

3. That I also wrote my full statement and the list of documents which I filed in court together with the defence.

4. That in the defence and in my statement, I made bare all the facts to show that I was duly, procedurally and legally registered as the owner of L.R. No. Kamanyaki/Kamarandi/1283 and 1280 and that there was no fraud at all.

5. That I have always intended to defend this suit as I am aware that loss of the land would lead to my being evicted from the land and my entire family leading to destitution and great poverty as I have no other land.

6. That my advocate on record, informed me that the case would be heard on the 27. 11. 2017 by telephone and by his letter of 6. 11. 2017.

7. That I and the co-defendants prepared to travel to the court for the hearing.

8. That I arrived in court at around 12 noon on the 27. 11. 2017 only to find that the case had been heard and the judgment set for delivery on the 21. 2.2018.

9. That I was late in arriving because I come from Kamarandi where getting public transport is extremely difficult and I had to walk long distance to catch a public motor vehicle to transport me to Chuka.

10. That I arrived together with my co-defendants and we were all shocked by the turn of events.

11. That I would not have absented myself from the court deliberately as I was fully aware of the consequences and my lateness was due to unavoidable circumstances.

12. That I have a very strong defence and granted a chance by this court, I will successfully defend the suit.

13. That as things stand now, I stand to suffer irreparable loss, rendered landless and being condemned to abject poverty as indeed that is the only land I have to call home.

14. That I am willing and ready to pay to the respondents throw away costs to get a chance to be heard.

15. That what I state herein is true and within my personal knowledge except where otherwise stated.

5.  The affidavit filed by the 4th defendant states as follows:

I, ELIVASE MUTEGI KAJIETA, an adult male of Kamaindi Location do hereby make oath and solemnly  make oath and swear as follows:-

1. That I am the 4th applicant/defendant herein and I am competent to swear this affidavit in support of the motion dated 17. 5.2018.

2. That after service of the summons herein, (sic) instructed the firm of Murango Mwenda 7 Co. Advocates to file a defence herein, which was done.

3. That I also wrote my full statement and the list of documents which I filed in court together with the defence.

4. That in the defence and in my statement, I made bare all the facts to show that I was duly, procedurally and legally registered as the owner of L.R. No. Kamanyaki/Kamarandi/1284 and that there was no fraud at all.

5. That I have always intended to defend this suit as I am aware that loss of the land would lead to my being evicted from the land and my entire family leading to destitution and great poverty as I have no other land.

6. That my advocate on record informed me that the case would be heard on the 27. 11. 2017 by telephone and by his letter of 6. 11. 2017.

7. That I and the co-defendants prepared to travel to the court for the hearing.

8. That I and the co-defendants prepared to travel to the court for the hearing. That I arrived in court at around 12 noon on the 27. 11. 2017 only to find that the case had been heard and the judgment set for delivery on the 21. 2.2018.

9. That I was late in arriving because I come from Kamarandi where getting public transport is extremely difficult and I had to walk long distance to catch a public motor vehicle to transport me to Chuka.

10. That I arrived together with my co-defendants and we were all shocked by the turn of events.

11. That I would not have absented myself from the court deliberately as I was fully aware of the consequences and my lateness was due to unavoidable circumstances.

12. That I have a very strong defence and granted a chance by this court, I will successfully defend the suit.

13. That as things stand now, I stand to suffer irreparable loss, rendered landless and being condemned to abject poverty as indeed that is the only land I have to call home.

14. That I am willing and ready to pay to the respondents throw away costs to get a chance to be heard.

15. That what I state herein is true and within my personal knowledge except where otherwise stated.

6.  The application is opposed through the plaintiff’s replying affidavit sworn on 1st June, 2018 which states:

I, M’CHABARI KINORI, a male adult of sound mind and disposition and a resident of Kamarandi Location in Tharaka Nithi County in the Republic of Kenya, do hereby make oath and solemnly state as follows:

1. That I am the respondent/decree holder herein and therefore capable and competent to make and swear this affidavit.

2. That the application dated 31st May, 2018 has been read over and explained to me by my advocate on record and I therefore wish to respond to the same as follows.

3. That the application is entirely bereft of merit, is a mere afterthought by the judgment debtors and an attempt by the judgment debtors to forestall the execution of this court’s orders.

4. That I am advised by my advocate on record, which advice I verily believe to be true, that the entire application is entirely misconceived, bad in law and fact and that the same is entirely lacking in merit.

5. That I am further advised by my advocate on record that the grounds raised in support of the said application are blatant falsehoods and material misconstructions.

6. That I am further advised that the applicants had every opportunity to litigate and defend their case which they failed to do

7. That I am further informed by my advocate that at every stage of the proceedings leading up to the judgment that the applicants seek to now set aside, counsel for the applicants and the applicants themselves have been fully aware of such dates for hearing of this matter but they inexplicably chose not to turn up.

8. That on 27th November, 2017 when this matter was heard, the applicant’s counsel had been served with the hearing notice and elected not to show up (annexed and marked MK-1 and 2 are copies of the hearing notice dated 31st October, 2017 and an affidavit of service dated 3rd November, 2017).

9. That the hearing notice clearly shows that the same was received in the honourable attorney general chambers on 3rd November, 2017 and the same was also received in the offices of Murango Mwenda & Co. Advocates for the Applicants on the same day.

10. That prior to that when the matter had been fixed for hearing on 31st October, 2017 when the matter was adjourned, counsel for the applicants and the Hon. A.G. still did not show up (Annexed and marked MK-3 and 4 are copies of the hearing notice dated 3rd August, 2017 and received in the offices of Murango Mwenda & Co. Advocates on 4th August, 2017 and an affidavit of service dated 6th August, 2017).

11. That the court record will bear clear witness that service has been effected on the defendants informing them of hearing dates but the defendants completely refused to turn up.

12. That I am further advised by my advocate on record that on the date this honourable court pronounced its judgment on 21st February, 2018, the defendants still did not show up.

13. That it now begs the question where the defendants have been all this time between when the matter was heard, judgment delivered and orders extracted and served.

14. That am further advised that the present application is truly time barred and is only more testament to the indolence of the applicants.

15. That it is my genuine belief that the applicants have no one else to blame for their perceived misfortunes but themselves.

16. That no interests of justice will be served in setting aside of this honourable court’s judgment but the same would only stop the judgment creditor from enjoying the fruits of his judgment.

17. That I now swear this affidavit in opposition to the defendant’s application dated 31st May, 20-18.

18. That what is deponed to herein is true to the best of my information knowledge and belief save as to where such sources have been disclosed.

7.  The application was canvassed by way of written submissions.

8.  The 1st, 2, 3rd and 4th defendants’/applicants’ written submissions are reproduced here below:

1ST, 2ND 3RD & 4TH DEFENDANTS/APPLICANTS SUBMISSIONS.

Background

Before Court is the Notice of Motion Application dated 31st March, 2018 and filed on 31st May 2018. The Applicant seeks orders inter alia that the ex-parte judgment entered by this Honourable Court on 21st February, 2018 be set aside and that the suit be heard de novo and decided on merits.

The Plaintiff/Respondent in this matter lodged a Claim vide a Plaint dated 23rd November 2016 and filed in Court on 28th November 2016 seeking orders that; a declaration that the Defendants invasion and alienation of the land Title Nos. KAMANYAKI/KAMARANDI/894 and 899 from which the Defendants have illegally carved out land parcels Nos KAMANYAKI/KAMARANDI 1280,1281,1282,1283 and 1284 is unlawful and the plaintiff is entitled to damages, the defendants be evicted from the parcels of land, cancellation of any and all titles issued to the defendants and directions to the District Land Registrar Tharaka South to consolidate the said parcels and issue a new title deed to the plaintiff. The 1st, 2nd, 3rd and 4th defendants filed their defence dated 23rd March 2017 and denied the allegations by the plaintiff, stating that they were registered as the absolute owners of these parcels of land after due process of Land Adjudication was carried out and completed.

In the defence and statements of the defendants, they have showed that they were duly, procedurally and legally registered as the owners of KAMANYAKI/KAMARANDI 1280,1281,1282,1283 and 1284 and that there was no fraud at all. The matter proceeded for hearing and on the 27th day of November 2017, the matter was fixed for hearing. The defendants were made aware of the date fixed for hearing and made arrangements to travel to court for the proceedings. The defendants arrived in court at 12 noon and found that the matter had been heard and a date set for judgment. The defendants did not fail to deliberately arrive in court as they encountered extreme difficulties arriving from Kamarandi where the means of transport are a problem and one has to walk long distances to catch a public motor vehicle to get to Chuka. Consequently, the orders prayed for by the plaintiff were granted vide a judgment delivered on the 21st day of February 2018.

This turn of events necessitated the Applicants’ filing of the Application dated 31st May 2018 for prayers that the judgment of the court be set aside and the suit be heard de novo. The Applicants accordingly make these submissions in support of the Application.

Issue for Determination and the Applicable Laws.

It is the Applicants’ humble submission that the following issue arise for determination in this Application:

(a) Whether the Judgment delivered on 21st February 2018 should be set aside and the suit be heard de novo.

Whether the Judgment should be set aside

The law on setting aside of judgment under Hearing and consequence of Non attendance is to be found under Order 12 Rule 7 of the Civil Procedure Rules, 2010. The said provision is in the following terms:

“Where under this 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 maybe just.”

Section 3 of the Civil Procedure Act confers special jurisdiction to the court to make such orders as the interest of justice dictates in instances where there is no specific provision in the Act. It provides;

“In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.”

Section 3A of the Civil Procedure Act further confers upon the court unfettered discretion to make all and any order necessary for the ends of justice. It provides thus;

“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.”

Section 1A and 1B of the Civil Procedure Act provide for the overriding objective of the court.  These provisions of the law are pertinent to the issue before this court. The court clearly has the powers to grant the prayers of setting aside the judgment. The Applicant urges this Honourable Court to be guided by these principles in determining this Application.

The parameters under which a Court should exercise the discretion to set aside a judgment under the said Order have also been aptly captured in various cases. In the case of Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd, the court cited relevant cases on the issue and held inter alia:-

‘‘The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel vs E.A. Cargo Handling Services Ltd.) the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah vs. Mbogo). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the Plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration vs Gasyali. It also goes without saying that the reason for failure to attend should be considered."

In  Shah vs Mbogo andOngom vs Owota the court held that for such Orders to issue, the court must be satisfied about one of two things namely:-

a. either that the defendant was not properly served with summons; or

b. that the defendant failed to appear in court at the hearing due to sufficient cause.

What constitutes “sufficient cause” for failure to attend hearing has been captured in various cases.

InParimal vs Veenathe court attempted to describe what "Sufficient cause" was when it 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"

Your Honour, in the instant case, the 1st, 2nd, 3rd & 4th defendants have explained in their sworn affidavits that they did not deliberately fail to attend the hearing. In fact, they arrived in court but were late and found the court had already proceeded with the matter and set down a date for judgment.

Your Honor, the fact that the said defendants arrived in court shows that they had intentions to attend court but got late due to unavoidable circumstances. The circumstances cited in the case are that of distance and means of transport from their place of residence to the courts. The said defendants have to walk long distances from Kamarandi before they catch a public motor vehicle to get them to Chuka.  Consequently, on the material day, the defendants encountered extreme difficulties in arriving to court in time for the hearing. They did not get to court late on purpose.

In the above cited case, it was noted thatthe 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.

The test to be applied in instances where “sufficient cause” is pleaded was further noted. It was stated that where it is shown that the defendant honestly and sincerely intended to remain present when the suit was called for hearing, that 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 of each case. Therefore, what the defendant must demonstrate is that he was prevented from attending court by a sufficient cause.

Your honor, in particular, the defendants have proceeded to show this court that they had all the intentions to remain in the case when it was being heard. However, circumstances beyond their control caused them to arrive in court late. We submit that the reasons adduced in court amount to “sufficient cause”.

Justice Adonyo of the High Court of Uganda in Transafrica Assurance Co Ltd vs Lincoln Mujunithe learned judge(sic) stated:-

"The rationale for this rule lies largely on the premise that an ex parte judgment is not a judgment on the merits and where the interests of justice are such that the defaulting party with sound reasons should be heard then that party should indeed be given a hearing."

We further submit that for the court to meet the ends of justice, the defendants should be given a chance to be heard and present their defence which raises triable issues. The defendants are desirous to defend their case.The Court should accordingly afford the parties a chance to be heard and arrive at a fair and just determination of the matter.

Article 50(1) of the Constitution of Kenya, 2010 provides for the right to fair hearing. The right to fair hearing is no doubt the opportunity to be heard and the case decided on merits. Every person has a right to have any dispute determined fairly. Article 159(2) (a) and (b) of the Constitution provides for administration of justice without undue regard to procedural technicalities. By virtue of this provision, the courts are obliged to ensure justice is met.

It is our submission that setting aside of the judgment will not cause any prejudice to the Plaintiff/Respondent herein if the Application is allowed. If anything, the Respondent will have the opportunity to have its case heard on its merits and prove the same on a balance of probabilities. The Plaintiff/Respondent can be compensated by an award of throw away costs.

Of importance to note is that the subject-matter of this suit is that of land. Your Honour, matters of land are emotive and sensitive. By the very nature that Africans give so much attachment to land, then care should be given to ensure that every party is given a chance to be heard. In the defendants’ defence, they have stated that they settled in the said parcels of land and have been living there with their families for many years. It is their ancestral land

Your Honour, there is evidence on record showing the defendants’ as the registered owners of the parcels of land in issue. Thus, throwing them out of the land that they have called home for their entire lives having cultivated and developed the same, without being heard, will be unjust and unfair.  It will also cause a lot of hardship and lead to destitution as the farming on these parcels of land is their source of livelihood.

It is our further submission that this was the first hearing date of the matter. The defendants do not have a history of absenting themselves from court. The court should therefore not visit them with hard orders without them being heard.

Conclusion

It is our humble submission that the Applicants are deserving of the orders sought. The Defendant has additionally demonstrated that the Defence raises triable issues. It is thus in the interest of justice that judgment is set aside and the matter be heard de novo and decided on its merits. The Application is accordingly meritorious and we pray that it be allowed.

We rely on the following authorities;

1.  Esther Wamaitha Njihia & 2 others vs. Safaricom Limited [2014] Eklr.

2.  Ruling to set aside ex-parte judgment: per Hon. Justice Henry Peter Adonyo: October, 2014.

3.  Parimal vs Veena @ Bharti on 8 February, 2011.

DATED AT MERU THIS 5TH DAY OF JULY 2018

FOR: MURANGO MWENDA & CO

ADVOCATES FOR THE DEFENDANTS/APPLICANTS

9.  The plaintiff’s written submissions are reproduced herebelow:

PLAINTIFF’S SUBMISSIONS

A. INTRODUCTION

1.  The following submissions relate to the application by the defendants/applicants dated 31st May, 2018 seeking to set aside the judgment delivered on 21st February, 2018. It is the applicants’ case that they were unheard in the case leading to a judgment that will affect them greatly.

B. BACKGROUND

2.  On 27th November, 2017 when the matter was heard,the applicants’ counsel had been served with the hearing notice and elected not to show up. A copy of the hearing notice and affidavit of service both dated 31st October, 2017 (26 days in advance) was annexed to the affidavit of the respondent in opposition of this application and marked as MK – 1.

3.  It is noteworthy that the same notice was received at the attorney general’s chambers and the firm of M/S Murango Mwenda and Company Advocates (Advocates for the 1st – 4th defendants) on the same day (3rd November 2017) as evidenced by the stamps on the face of the document.

4.  Prior to when the matter was set for hearing on 31st October, 2017 when the matter was adjourned, counsel for the applicants and the Hon. AG did not show up. This is evidenced by the hearing notice and affidavit of service annexed to the respondent’s affidavit in opposition to the application to set aside and marked as MK-3.

C. ISSUES FOR DETERMINATION

5.  The respondent herein prays that this honourable court considers the criteria set down by Ongom vs Owota where the court held inter alia that the court must be satisfied about one of  two things namely:-

a)  Either that the defendant was not properly served with summons;

b)  Or that the defendant failed to appear in court at the hearing due to sufficient cause.

D. DETERMINATION OF ISSUES

a.  Either that the defendant was not properly served with summons;

6.  The defendants were served with hearing and mention notices throughout and they cannot claim lack of service on their part. The same notices are annexed in the affidavit sworn by the plaintiff/respondent in objection to the application to set aside.

7.  The court in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR made the following observation;

The former Court of Appeal for Eastern Africa, in Ali Bin Khamis v. Salim Bin Khamis Kirobe & Others, [1956] 1 EA 195 expressed the view that where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debito justitiae, from setting aside such an order.

8.  Lady Justice Aburili in Burhani Decorators & Contractors v Morning Foods Ltd & another [2014] eKLR held that where the appellant argued that failure to attend court with his advocate was not intentional but inadvertent as it was neither notified of the hearing  date nor was his advocate made aware of the hearing date as fixed and diarized by his clerk in the latter’s diary only, without transferring the date to the advocate’s diary for that date. Consequently, the learned judge held that;

Is the mistake excusable just because it is made by the court? My answer is no. a mistake is a mistake, and as long as sufficient explanation is given showing good faith like in this case, it should be excused and a party given an opportunity to be heard on their grievances on merit.

9.  There is indeed a deliberate attempt to delay and obstruct the course of justice in this matter. The fact of service of both hearing notice and indeed the notice before action cannot just be wished away.

b.  Or that the defendant failed to appear in court at the hearing due to sufficient cause.

10. The delay, particularly between 27th November, 2017 and 31st May, 2018, a period of a whole six (6) months, should have been explained by an affidavit by an advocate with M/S Murango Mwenda & Company Advocates. The delay before that (27th  November, 2017) the date when the defendant missed court and found out that the case had been set for judgment to (21st February, 2018) the judgment date, another three (3) months should have been explained by the defendant.

11. None was done by either of them. Therefore, in light of the holding in Express (k) LTD vs Manju Patel (2001) eKLR at page 5 tha

‘In view of the fact, that the explanation as to why steps were delayed has not come from those who were responsible for the delay namely the insurers, it is impossible to say the hardship now faced by the defendant in this respect is attributable to accident or inadvertency or mistake. As the court’s discretion is not intended to assist a person who has sought to delay the cause of justice, I am not in the foregoing circumstances persuaded that the delay in question was not deliberate.  …and I dismiss the defendant’s application with costs to the plaintiff.’

12. It was recognized in Egal Mohamed Osman v Inspector General of Police & 3 others [2015] eKLR at paragraph 50 that;

“In the case of S v Zuma & Others (1995) 2 SA 642 (CC) the South African Constitutional Court held that a party alleging a violation of a constitutional right or freedom must demonstrate that the exercise of a fundamental right has been impaired, infringed or limited.”

CONSTITUTIONAL PROVISIONS

13. The Constitution of Kenya 2010, frowns upon technical justice. It loves and laconically advocates for substantial justice. That is why under Article 159 (2) (a), (b) & (d) it provides as follows:

‘(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles –

a)  Justice shall be done to all, irrespective of status;

b)  Justice shall not be delayed.

c)  Justice shall be admitted without undue regard to procedural technicalities.’

14. Therefore, it cannot be and it should not be let to lie in the mouth of the defendants or be implied that yes, the defendants were served with the hearing notices but because they chose not to defend the suit, then the court should turn back the clock to pre-hearing time. This will lead to delay of justice and against article 159 (2) (b).

E. CONCLUSION

15. Consequently, no plausible reasons have been set up by the defendants and setting aside the judgment herein would be merely postponing the day of reckoning while the plaintiff continues to suffer tremendous loss. Also, there has to be an end to litigation and parties should not be encouraged to take judicial time for granted.

16. We pray that this application be dismissed with costs.

DATED AT EMBU THIS 6TH DAY OF JULY, 2018.

GUANTAI & ASSOCIATES

ADVOCATES FOR THE PLAINTIFF

10. I have carefully considered the pleadings, the submissions and the authorities proffered by the parties in support of their respective assertions.

11. The defendants’/applicants’ advocate has proffered three cases in support of their assertions. They are:

a)  Esther Wamaitha and 2 others versus Safaricom Limited [2014] eKLR.

b)  Transafrica Assurance Co. Limited Versus Lincoln Mujuni (Uganda HC Misc. Application no. 79 of 2014).

c)  Parimal Versus Veena & Bharti – Supreme Court of India Civil Appeal 1467 of 2011.

12. I opine that the above three cases eruditely elaborate the principle that in proper circumstances, courts can exercise their judicial discretion to set aside decisions made by themselves or by lower courts or tribunals.

13. The plaintiff’s advocate has proffered the following cases in support of his assertions:

a)  James Kanyita Nderitu & Another (Plaintiff) Versus Marios Philota Ghikas & Another (Applicants) – [2013] eKLR.

b)  Burhan Decoraters & Contractors (Appellant) Versus Morning Foods Ltd & Another (Respondents) – [2014] eKLR.

c)  Express (Kenya) Limited (Appellant) Versus Manju Patel (Respondent) [2001] eKLR.

d)  Egal Mohamed Osman (Petitioner) Versus The inspector General of Police and 4 others (Respondents) [2015] eKLR.

14. The above cases are good authorities that courts may dismiss or reinstate suits depending on apposite facts and circumstances

15. This suit was heard ex-parte and a judgment was delivered on 22nd February, 2018. The plaintiff and his three witnesses gave evidence. Before hearing the suit ex-parte in terms of the provisions of Order 12 of the Civil Procedure Rules, the court satisfied itself that the hearing date was within the knowledge of all parties. Having satisfied itself that the defendants had been properly served, the plaintiff’s advocate, Mr. Guantai, moved the court to hear the matter ex-parte. This request was granted.

16. The provisions contained in order 12 of the Civil Procedure Rules are aimed at obviating situations where litigants hold courts and opposite parties to ransom by ensuring that their absence will delay hearing and determination of suits.

17. The defendants through affidavits filed by the 1st and the 4th defendant claim that they were told by their advocate that their suit would be heard on 27th November, 2017. They, however, claim that by the time they arrived in court at around noon, they found that the suit had been heard and that the court had set the 21st July of 2018 as the date for delivery of the apposite judgment. They claim that they arrived in court late because they had transport problems.

18. I do note that the defendants in their affidavits state that they had provided all documents that made the court ready for hearing. It is exactly because a suit is ready for hearing that it is set down for hearing. This should not be used as a reason as to why a suit should be reinstated.

19. I am not persuaded by the principal excuse the defendants have proffered that this suit should be reinstated. That reason is that they had transport problems. I opine that if all parties have to do is to claim that they had transport problems for their suits to be reinstated, this would create a perfect excuse for procrastination of judicial processes. As they have quoted sections of law and the constitution regarding how justice should be administered, they should be reminded that Article 159 (2) (b) decrees that, “Justice shall not be delayed.”

20. I do note that the defendants in their affidavits admit that they became aware that judgment was to be delivered on 21st February, 2018, on 27th November, 2017, when they claim they came to court late. They, however, do not explain why, upon learning that judgment was to be delivered on 21st February, 2018, three months after they learnt that the case had been heard, they did not move appropriately to file an application in court to canvass their claimed predicament.

21. I note that the 5th and 6th respondents, who were conjoined at the hip with the 1st to 4th defendants, after the plaintiff claimed that they had all colluded to illegally carve out new land numbers from his land, did not participate in the hearing proceedings. They have since then remained mute.

22. The defendants’ advocate who was supposed to lead their defence during the hearing that took place on 27th November, 2017, has not explained, to any extent, why he himself was not in court during the apposite hearing. If he came to court, he could have explained the defendants’ claimed predicament to the court and appropriate directions would have been given by the court.

23. I agree with the submissions proffered by the plaintiff’s advocate that this court’s judgment delivered on 21st February, 2018 should not be set aside and that the suit should not be reinstated.

In the circumstances, this application is dismissed.

Costs shall follow the event and are awarded to the plaintiff.

It is so ordered.

Delivered in open Court at Chuka this 19th day of September, 2018 in the presence of:

CA: Ndegwa

Edwin Kimathi h/b Guantai for the plaintiff

Jacob Gitonga Muriungi – 3rd defendant

Elivas Mutegi Kajieta

P.M. NJOROGE

JUDGE