Patria Properties Ltd v Attorney General [2015] KEHC 1566 (KLR)

COPY

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 417 OF 2010

PATRIA PROPERTIES LTD......................................PLAINTIFF

VERSUS

THE ATTORNEY GENERAL..................................DEFENDANT

RULING

1. The Attorney General has moved the court under Order 12    rule 2 & 7  of the Rules and Section 1A, 1B, 3 and 3A  of the Act seeking for prayers ;

That the exparte judgment delivered on 27. 3.2014 all consequential orders be set aside.

the defendant be granted unconditional leave to defend this suit and also prosecute their counter - claim

Cost of the motion be granted to the applicant.

2.  The motion is supported by several grounds on the face of it  and the affidavit of Oscar Mmene Eredi the Principal Litigation Counsel. Briefly Mr. Eredi deponed that the  matter came up when he was on leave and that the hearing  date was not brought to his attention before he proceeded on his leave.  He admits being aware that their office was   contacted by the plaintiff on the date of 12. 2.2014 when the matter was in    court.

3.   He deposed further that the advocate who received the call    was not able to attend to the matter due to indisposition.   Mr. Eredi contended that  he was diligent enough to have   filed and served a statement of defence and counter-claim   on 30/7/2013. It is his case therefore that the   Attorney  General has a good defence. He deposes that the  court occasioned a miscarriage of justice by failing to give a date   for hearing of the defence and counter - claim and or  filing of submissions after the close of the plaintiff’s case.    He urged the court to allow the application.

4.  The motion is opposed by the plaintiff in sworn a   replying affidavit. The respondent deposes that the    application is misconceived, an abuse of the court process and unmeritorious and undeserving of the courts'  discretion. He listed in paragraph 5 (a) - (m) the instances why he argues this application is an abuse of the court process.  The   respondent also deposes that the amended   defence and counter - claim was filed out of time without    leave of the    court. The respondent states that no proper grounds have been put forth to the court for it to exercise   its discretion favourably on the applicant. The respondent   deposed further that there are other State Counsels  in  the defendant's office other than Ms. Kiti  and Mr. Ngari and  listed Ms. Lutta and Mr. Masila. The respondent avers that this application was filed after undue delay since the applicant did nothing after being served with notice of judgment. He urged the court to dismiss it with costs.

5.   The counsels filed their written submissions supported by  case law cited which I have had occassion to read and consider. In the case law cited by the defendant/applicant,    the case of Macaulay vs. De Boer & another (2002) KLR pg  1 at holding no. 2 laid down the grounds for setting aside  exparte judgments. This case referred to the renowned case  of Shah vs. Mbogo & ano. (1967) E.A. 116. It is not in    dispute that this court has inherent powers of setting aside exparte judgments but the court while exercising such discretion must consider the circumstances of each case.    The discretion is exercised to avoid injustice or hardship  resulting from accident; inadvertence or excusable error by    parties but is  not intended to assist a person who    deliberately chose to obstruct or delay the course of justice.

6.  Taking into account the principles to be considered while    exercising discretion in setting aside orders/judgments and   relating them to this case; I will  briefly summarise the  actions of the parties herein before and on the date when       this matter proceeded for hearing exparte  and the  subsequent judgement entered in order to determine     whether the applicant is deserving of the orders sought. On  12th    November 2013 when the matter came up for hearing;  Ms. Lutta who held brief for Mr. Eredi for the defendant/applicant indicated that the defendant was not  ready to proceed as Mr. Eredi was out of   the country and  he intended to file some documents to wit survey maps and   plans. They sought another date to enable them have time   to file the documents. The adjournment was opposed by Mr    Karega for the plaintiff but the case was eventually  adjourned to 12. 2.2014 for hearing. On 12. 2.2014, no  appearance was made by the Attorney General when the  court commenced its sitting which I assume was at 9am.  From the record, the judge indicated that he did not want to proceed without the input of the Attorney General and put  off the matter to 3 p.m with a direction that Mr. Karega   Counsel for the plaintiff to contact the office of the A.G.

7.  At 3. 35 p.m Mr. Karega informed the judge that he called  the  Attorney General's office and spoke to Ms. Kiti and   gave her the case details. Still there was no representation   from the A.G and therefore the matter proceeded at 1/4  to    4 p.m. The date of 12th Feb 2014 had been taken by consent. Was the non - attendance by the Attorney General   excusable or inadvertent?  The plaintiff deposes that there  were more than two State Counsels in the office and listed  the names as Ms. Kiti,   Mr. Ngari, Mr. Masila and Ms.   Lutta. This fact has not been  rebutted. The only   explanation given is that Ms. Kiti's child was taken ill and she had to attend to him hence she missed to come to   court. No explanation is  given why Ms. Lutta who took  this date did not attend court before they were called by Mr. Karega or explain her whereabouts. Ms. Kiti has also  not indicated in her affidavit   if she informed Ms Lutta or any of her colleagues other  than Mr Ngari who was engaged   elsewhere of her predicament.

8.  I am alive to the legal precedent that mistake of Counsel  should not be visited on their clients. The Attorney General   had sought adjournment to put in documents. The court  file reveals none was filed between 12. 11. 2013 and   12. 2.2014. The applicant has blamed the trial  judge for   finding that their defence was a mere denial. Yet  with no  documents and witnesses statements filed and on   record,  I do not see any wrong in the judge holding so. This was not   just a mistake of counsel only but laxity of the party in   putting his documents in time. It creates a doubt in mind that even if the advocate attended, the defendant may still  not have been ready to proceed having not complied with the provisions of order 11 of the Civil Procedure Rules. I find  the defendant and his advocate are  indeed both guilty of delaying the course of justice in causing delay in the prosecution of this case and therefore not deserving  of  this court's discretion.

In conclusion I find the application fails to meet any of the  principles for setting aside exparte judgment and I dismiss   it but with no order on costs.

Dated and delivered at Mombasa in open court this 24th day of March  2015.

A. OMOLLO

JUDGE