M’Ndegwa v Equity Bank (Kenya) Ltd [2022] KEHC 15794 (KLR)

M’Ndegwa v Equity Bank (Kenya) Ltd (Civil Appeal E085 of 2022) [2022] KEHC 15794 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15794 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E085 of 2022

TW Cherere, J

December 1, 2022

Between

Jacob Mwongela M’Ndegwa

Appellant

and

Equity Bank (Kenya) Ltd

Respondent

(Being an appeal from the Ruling in Isiolo CMCC NO. 35 OF 2019 by Hon. E.Ngigi (PM) on 05th January 2022)

Judgment

Background 1. Respondent sued the Appellant seeking KES. 1,212,164. 64 being the balance outstanding on a loan advanced to the Appellant, costs and interest. Appellant filed s statement of defence. However, neither him nor his advocate attended the hearing. The Respondent was heard and on January 5, 2022, judgment was entered for the Respondent in terms of the prayers in the plaint.

2. By a notice of motion dated and filed on 21st March, 2022, Appellant sought an order to set aside the exparte judgment and leave to defend the suit on the grounds that his counsel did not inform him of the progress of the case.

3. The application was opposed on the basis of a replying affidavit sworn on March 31, 2022 by Respondent’s Assistant Legal Officer Duncan Matisero who accused Appellant of failing to follow up the matter with his advocate.

4. By a ruling dated June 14, 2022, the court dismissed the application and it is that dismissal that triggered this appeal mainly on the ground that the Appellant was condemned unheard.

Analysis and determination 5. I have considered the appeal in the light of the evidence on record and submission on behalf of both parties.

6. It is trite law that "whoever alleges must prove. Section 107 of the Evidence Act, Chapter 80 Laws of Kenya states as follows:1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person

7. The duty to prove that his counsel did not inform him of the progress of the case lay squarely with the Appellant. Appellant’s contention was dismissed on the basis of a WhatsApp message allegedly from his advocate stating that he did not pick her calls and it was on that basis that the application for leave to defend was dismissed.

8. With respect, I find that the trial magistrate fell into error when he ignored the Appellant’s averments made on oath and placed a lot of weight on the WhatsApp messages which neither constituted admissible evidence nor was its veracity tested.

9. In Patel v EA Cargo Handling Services Ltd [1974] EA 75 at page 76, Sir William Duffus P held:“The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.

10. This Court will not lightly interfere with the discretion of the trial judge unless it is satisfied that he misdirected himself in some matter, and as a result arrived at a wrong decision, or unless it is manifest on the case as a whole that the judge was clearly wrong in the exercise of his discretion, and that as a result there has been a miscarriage of justice. (See Mbogo v Shah [1968] E A 93. )

11. It should be the court’s last resort to deny a party a chance to be heard. The overriding objective of the civil procedure rules is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Judicial authority to do justice to all, vested on this court by Article 159 of the Constitution cannot be said and be seen to be exercised if the courts were to deny a party a chance to be heard on merit especially one that has demonstrated that his advocate failed to inform him of the progress of the case.

12. In conclusion, I find that a case has been made out for allowing the appeal and it is therefore hereby ordered:1. The order dated June 14, 2022 dismissing the notice of motion dated and filed on March 21, 2022 is set aside and substituted with an order allowing the application to set aside the judgment entered on January 5, 2022 and all consequential orders2. The original file be forwarded to Chief Magistrate Isiolo for directions as to the hearing of the suit interpartes3. Each party shall bear its own costs

DELIVERED IN MERU THIS 01ST DAY OF DECEMBER 2022WAMAE. T. W. CHEREREJUDGECourt Assistant - Morris KinotiFor the Appellant - Mr. Karanja for Brian Njau & Co AdvocatesFor the Respondent - Ms. Kagori for C.B.Mwongela & Co. Advocates