MORRIS DZORO v DIANA NYANCHAMA MOKUA [2007] KEHC 2158 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Appeal 213 of 2006

MORRIS DZORO ………………………..………  APPELLANT

VERSUS

DIANA NYANCHAMA MOKUA …….………  RESPONDENT

JUDGMENT

The Appeal before me arises from the ruling of the Children’s Court in Children’s Case No. 40 of 2005 dismissing the Appellant’s application dated 12th September 2006.  That application sought to set aide the ex parte judgment that had been entered against the Appellant in the same case on 4th September 2006.  This is how the ex- pate judgment arose.

In her plaint in that case the Respondent claimed that the Appellant is the father of her child, Yvonne Kerubo, born on 27th January 1997 whom the Appellant had refused to maintain and or educate.  She therefore claimed the legal custody of the child and a sum of shs. 16,000/- per month being maintenance and school fees. .  The case came up for hearing on 4th September 2006 and in the absence of the Appellant and his advocate the Respondent formally proved her claim and the Children’s court entered judgment in her favour as prayed in the plaint. It is that judgment that the Appellant sought to set aside by his application dated the 12th September 2006, which was dismissed provoking this appeal.

The main issue in the application was service of the hearing notice.  One Julius Mutusia Okindo, a process server employed by the Federation of Women Lawyers – Kenya (FIDA), was summoned for cross-examination during the hearing of the application.  He claimed that he served a hearing notice on the Appellant’s advocates on the 31st July 2006.

The service of that hearing notice was a complete muddle.  In his affidavit of service the said process server claimed that he served a hearing notice dated the 27th July 2006 on the Appellant’s Advocates at their office on second floor of Ambalal House.  It further stated that the service was accepted by those Advocates’ clerk who signed and dated it.  That was all wrong.  The hearing notice was dated the 25th July 2006 and not 27th July 2006 and gave the hearing date as 1st September 2006 instead of 4th September 2006.  The Appellant’s advocates are on the first and not second floor of Ambalal House and the court clerk he allegedly served refused to accept or sign the hearing notice claiming that they had been served with a hearing notice for another day.

Those errors notwithstanding I agree with the learned trial magistrate that the Appellant’s advocates knew of the correct hearing date.  This is because when the Appellant’s advocates’ application to withdraw from acting for him came up for hearing on 21st August 2006 but could not be heard as they had not served it upon the Appellant, in the presence of counsel for both the parties the plaintiff’s application for maintenance which was apparently also scheduled for hearing on that day was adjourned to be determined in the full hearing on 4th September 2006 as it sought the same prayers as those sought in the plaint.  Come the 4th September 2006 neither the Appellant nor his advocate attended and court was perfectly entitled to proceed as it is did, ex-parte.  The court was also entitled to observe, as it did, that the Appellant had on several occasions previously delayed the hearing of the case by his advocate’s application for adjournment.  The record is replete with those applications.

Having considered the whole mater I am, however, of the view that the Appellant himself may have not been aware of the hearing of the matter on 4th September 2006 and he should not suffer for his advocates’ mistake – Shah –Vs- Mbogo & Another (1967) EA 116.

This appeal arises form a February 2005 case seeking maintenance and school fees for a child. While the parties fight it out in court the child needs to eat and go to school. I note from the record that at one time the Appellant paid to the Respondent Shs. 35,000/- for the maintenance of the child.

Taking all those factors into account and to give the Appellant a chance to be heard, I allow this appeal set aside the learned trial magistrate’s ruling on 21st November 2006 and substitute it with an order allowing the Appellant’s application dated 12th September 2006 which in effect sets aside the ex-parte judgment entered against the Appellant on 4th September 2006.

As I have said while the parties fight it out in court the child needs to eat and go to school.  Indeed the Children’s Act enjoins us to protect the rights of children.  I therefore order that the amount deposited in court be released forthwith to the Respondent for the maintenance and education of the child. I further order that the case be heard and concluded within three months from the date hereof.

The Respondent shall have the costs of this appeal and all those incurred so far in the court below.

DATED and delivered this 27th day of June 2007.

D.K. MARAGA

JUDGE