Nellius Wairimu Mwangi v Sarah Njambi Kiarie [2022] KEELC 500 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

ELC SUIT NO.733 OF 2014

NELLIUS WAIRIMU MWANGI..........................PLAINTIFF

VERSUS

SARAH NJAMBI KIARIE.................................DEFENDANT

RULING

1. This is the Notice of Motion dated 31st August 2020 brought after judgement was entered on 18th July 2019.

2. It is brought under Order 10 Rule 11 of the Civil Procedure Rules, Section 3A and 63(e) of the Civil Procedure Act and all other enabling provisions of the law.

3. The Defendant/Applicant seeks orders:-

a) Spent.

b) That this Honourable court be pleased to set aside the judgement entered herein against the Defendant/ Applicant on 18th July 2019 and all the consequential orders therefrom.

c) That the Defendant be granted an opportunity to be heard and a date be set for defence hearing.

d) That costs of this application be provided for.

4. The grounds in support of the application are on the face of the motion. The motion is supported by the affidavit sworn on 31st August 2020 by Dominic Njuguna Mbigi; Advocate in conduct of the matter on behalf of the Defendant.

5. He deponed that when this matter came up on 28th June 2018  to take a hearing date before the judge, the Defendant and her counsel were  absent and a hearing date was fixed for 27th March 2019.

6. He further deponed that neither the Defendant nor her counsel was served with the hearing notice for the 27th of March 2019 therefore both were consequently absent on the hearing date.

7. He also deponed that the Defendant and her counsel were not aware of the proceedings on 27th March 2019 and the judgement on 18th July 2019 and as such, they are at risk of losing an opportunity to be heard unless the judgment is set aside.

8. The application was also supported by the affidavit sworn on 31st August 2020 by Jane Wanjiku Mbugua; the Defendant’s appointed Attorney. Her averments mirrored those of the Defendant’s Advocate.

The Plaintiff’s Response

9. The Plaintiff opposed the application by way of her replying affidavit sworn on 18th October 2020. She deponed that contrary to the averments of the Defendant’s counsel, the case was fixed for hearing on 27th March 2019 when it came up for mention on 28th June 2019 in the presence of counsel for both parties.

10. She further deponed  that the judgement  dated 18th July 2019 confirms that position. She also  deponed that neither the Applicant nor her Advocates were present for the hearing and the matter proceeded ex parte  as it should and judgement was entered  in a proper and meritorious manner.

11. She  deponed that the Applicant and her counsel were aware of the proceedings but they neglected to attend and that this application is  filed as an afterthought after the matter  came up for taxation. She added that the delay of one year after judgement in filing this application is unwarranted and inexcusable.

12. On the 26th July 2021 the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.

The Applicant’s submissions

13. They are dated 13th September 2021. Counsel for the Applicants framed issues for determination as follows:-

a) Whether the Applicant herein had notice of the hearing and judgement of this matter.

b) Whether this court has powers to grant the orders sought.

c) Whether the defence raises triable issues.

d) Whether the Defendant will suffer any prejudice if the application is allowed.

14. Counsel for the Applicant relied on the case of Shah v.Mbogo and Another [1967]E.A cited Christopher Garo Nyawade v H.Young & Company(E.A) to submit that  this court has discretion to set aside a judgement to avoid injustice resulting from excusable mistake.

15. He further submitted that while the court proceeded to enter judgement for the Plaintiff against the defendant for kshs.700,000/=,the Defendant had filed his statement of defence and was ready for hearing. He added that her non-attendance on 27th March 2019 was inadvertent and caused by circumstances beyond counsel’s control and not indolence. He pleaded with the court to pay attention to the principles of natural justice and Article 50 of the Constitution which provides for the right to fair hearing.

16. Counsel also submitted that the defence raises triable issues which are concerns over the validity of the agreement through which the Plaintiff alleges that she bought the property in question, the fact that the Plaintiff breached the alleged agreement by failing to pay all instalments as per the contested agreement and concerns that the suit is time barred. He asked the court to consider the defence raises triable issues and  put forward the case of  Moi University v Vishya Builders Limited-Civil Appeal No.296 of 2004 (unreported) cited in Isaac Awuondo v Surgipharm Limited & Another[2011]e KLR.He also  submitted that the Plaintiff will not be prejudiced if the orders are allowed.

The Plaintiff’s /Respondent’s submissions

17. They are dated 18th November 2021. Counsel for the Plaintiff framed the following issues for determination:-

a) Whether the Applicant had notice of hearing and judgement in this matter.

b) Whether the Applicant has any just cause to warrant setting aside the judgement.

c) Whether the Respondent will suffer any prejudice should the application be allowed.

18. Counsel for the Plaintiff relied on the case of Mark Bushuru Angalia v Frodak Kenya Limited[2020] eKLR to submit that the Applicant came to this court with unclean hands by suppressing material facts  claiming she was unaware of the hearing date of the matter despite the same being taken in the presence of both counsels.

19. He also submitted that delay in filing this application is unwarranted and  inexcusable. He cited the case of Boad of Management St Augustine Secondaary School v Chambalili Trading Co. Ltd [2021]eKLR to submit that  the Defendant has not given any just cause or valid basis for the delay and non-appearance thus the judgement should not be set aside. He added that the issues raised in the defence were considered before judgment was entered.

20. It was his submission  that allowing the application will occasion great injustice to the Respondent as she has been litigating this matter for years on end and it is deliberately geared towards delaying justice for the her.

21. He relied on the case of Satya Bhama Gandi v Director of Public Prosecutions & 3 Others[2018]e KLR to ask the court to protect itself from abuse of its process since the Applicant had resorted to dishonesty in a bid to hoodwink the court to exercise its powers in an unfair manner.

22. I have considered the notice of motion, the affidavit in support and the response thereto.  I have also considered the written submissions and the authorities cited. the issues for determination  is whether the exparte judgment dated 18th July 2019 ought to be set aside.

23. Judgement was entered  ex-parte in this matter on  18th July 2019. The record shows that counsel  for both parties were present  in court on  28th June 2018 when this matter was fixed for hearing for 27th of March 2019. It is therefore baffling that the  Applicants counsel would  depone otherwise in his affidavit.

24. The law on setting aside ex-parte judgement where a defence has been filed but the party is absent on the hearing date is Order 12 Rule 7 of the Civil Procedure Rules which stipulates as follows: “Where under this order judgment has been entered or the suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

25. The court has discretion to set aside ex parte judgement. Cited in John Kimini Kamutu v Joseph Macharia Ngunjiri & 3 others [2021] e KLR,Harris Jin Shah v Mbogo & Another [1967] EA 116 at page 123 considered the purpose of the discretionary power to set aside an ex-parte judgment as follows: “I have carefully considered, in relation to the present application, the principles governing the exercise of the court’s discretion to set aside a judgement obtained ex parte.  The discretion is intended so 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 has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice …”.

26. A perusal of the record indicates that  after the judgement was entered ,the Plaintiff/Respondent extracted the decree and it was served on Counsel for the Applicant on 4th October 2019 yet he claims that he was not aware of the judgement. This application is brought almost a year after the Defendant’s counsel became aware of the decree. This demonstrates that the Defendant is merely seeking to deliberately delay or obstruct the course of justice. Further, the issues in the Defendants defence were considered in the ex-parte judgement.

27. I have considered the judgment dated 18th July 2019, nothing will be achieved by setting this judgment aside.  Granting these orders would delay the final resolution of this matter.

28. I find no merit in this application and the same is dismissed with costs to the Plaintiff/Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH  DAY OF MARCH 2022.

...........................

L. KOMINGOI

JUDGE

In the presence of:-

No appearance for the Plaintiff

Ms Maina for Mr. Mbigi for the Defendant

Steve - Court Assistant