Wathiguru Women Group alias Gladys Waithira Kamau v Andrew Gitahi Kimotho & Florence Wanjiru Kungu [2021] KEELC 3821 (KLR)

REPUBLIC OF  KENYA

IN THE ENVIRONMENT  AND LAND COURT AT THIKA

ELC APPEAL NO. 26 OF 2019

WATHIGURU WOMEN  GROUP alias

GLADYS WAITHIRA  KAMAU...........................................................APPELLANT

VERSUS

ANDREW  GITAHI  KIMOTHO..................................................1ST RESPONDENT

FLORENCE  WANJIRU KUNGU.................................................2ND RESPONDENT

(An Appeal   from the part of the Ruling  of Senior  Resident Magistrate  Court at Thika  by Hon.B.M Ekhubi  SRM  dated 13th February  2019 in the Chief Magistrates Court  Civil Suit  No. 1252 of 2015)

BETWEEN

ANDREW  GITAHI  KIMOTHO...............................................1ST PLAINTIFF

FLORENCE  WANJIRU KUNGU............................................2NDPLAINTIFF

VERSUS

WATHIGURU WOMEN  GROUP alias

GLADYS WAITHIRA  KAMAU...............................................DEFENDANT

JUDGMENT

The Appellant Wathiguru Women Group alias Gladys Waithira Kamau was the Defendant and the Respondents were the Plaintiffs . By a Notice of Motion Application dated  3rd December 2018 , the Appellant sought for orders that;

a) That  the Honourable Court  do set aside  the Judgment / decree herein and allow the Defendant to prosecute  her case and the same be determined on merit.

b) That  this Honorable Court  do  issue orders compelling  the plaintiff and Hebros  Auctioneers  to give an account  of the proceeds realized  from the proclamation  and  sale  of properties as per proclamation  dated 27th November  2018 and notification  of sale dated 22nd march 2017.

c) That the Honourable Court  do issue orders  lifting the attachment /proclamation   unconditionally.

d) That the Cost  of this Application be borne  by the Plaintiffs.

The Application was premised on the grounds that the Defendant/ Applicant(Appellant) had never  been served with Notice  of entry  of Judgment  or examined on her wealth  as required by law. That the Defendant/ Applicant(Appellant) has never given  testimony in this case, hence cannot  understand how Judgment  and Decree  was obtained and her  former Advocate  kept her in darkness concerning this case. That the attached properties  belong to 3rd parties,  hence incapable of  being attached in satisfaction of the  purported Judgment /Decree. That, previously the Plaintiffs/ Respondents and Hebros Auctioneers  did proclaim  and sell properties  belonging to the Defendant’s(Appellant’s)  daughters and no account was given. That the 3rd parties who own the attached  properties  have warned the Defendant/ Applicant(Appellant) of dire  consequences  if they are sold, hence  unless the orders  sought  are granted, the Defendant/ Applicant (Appellant) marriage of over 60 years  is at stake.

In her Supporting Affidavit,  Gladys Waithira Kamau, averred that she engaged the services of  Kabue Thumi & Co Advocates,  but due to pressure of work, the said Law Firm did not inform her  of any progress in the instant suit. That in October 2016, Hebros Auctioneers  attached and sold  her daughter Cows and some properties  worth over Kshs.1,000,000/= and have never given an account  of the proceeds realized.  That on 27th November 2018, the Plaintiffs/ Respondents sent Okuku Auctioneers who proclaimed properties belonging to one David  Stanley Kamau  and are planning to sell the same by public auction. That she has never owned a Motor Vehicle,  Freshian cows, Merino sheep , water tank  and cutting machine  and that the same are grossly undervalued.

Further,  she has never been called upon to testify in the instant suit  or been told how / when the Judgment and Decree was obtained. That the Plaintiffs(Respondents)  have no claim against her as per the Defence on record  and hence she should be given an opportunity to testify and clarify issues. That she has never  received an account of how much was realized from the sale conducted on 24th March 2017  or how the proceeds of the sale were appropriated by  the Plaintiffs(Respondents)  and  her Advocate. That she sold L.R Ruiru/Kiu Block 4/1390 to the Plaintiffs (Respondents)  and was in the process of  transferring the same  to their names. That the Plaintiffs (Respondents) refused to cooperate  and rushed to Court, hence the process  shall have been complete.

Further, the Plaintiffs(Respondents) holds her original documents  to the said property  and they have sold the  properties in  refund of the purchase price  and they want to enrich themselves by  selling properties  illegally attached .  That her husband exclusively owns the livestock  project and the same are his tools of trade.

The Application was opposed and  Andrew Gitahi  Kamotho swore a   Replying Affidavit on  11th December 2018, and averred that  Hebros Auctioneers  effected attachment of 6 cows and 2 calves, the only  properties attached  as the said instruction were through  his appointed advocates. That if any ownership is being claimed, the same ought to have been proved through ownership documents  which the Applicant has not presented.  That Okukus agencies Auctioneers were instructed by his Advocate  as the law requires after Judgment  had been lawfully entered in their favour.  That the proclaimed properties are the same as previous proclamation notice proving that they belong to the Appellant, whose intention is to mislead the Court.

That the matter was slated for full hearing and the Applicant’s (Appellant’s)Advocate sent  his representative  who did state that the Applicant(Appellant),  their client was not available  and since the Court did not allow part heard, the same was adjourned and another date was taken in court by both Advocates  for 19th April 2018.

That on the date of the hearing, the Respondents (Plaintiffs) appeared and the matter proceeded and thereafter Applicant’s advocate closed her case  since the Applicant(Appellant)  never turned up. That he has been advised by his Advocate that “he who seeks equity must come with clean hands.”That  the Applicant was  allowed to defend herself, but she denied herself,  the opportunity  by failing to turn up in Court . That the Defendant/ Applicant(Appellant)  through her previous Advocates  filed an Application under Certificate  seeking to have the  Ex parte Judgment  set aside, which  was granted on the basis  that throw away costs  of Kshs. 10,000/=be paid and thereafter disappeared from her own Advocates. That the Defendant/ Applicant (Appellant) went mute when she realized that  the suit property had been sold  to another  third party unknown to them  and he was developing the said property . That he has been advised by his Advocate which advice he believes to be true that for the Auctioneers  to be compelled to breakdown  the alleged proceeds, the Applicant ought to have filed an Application  against the Auctioneers  and not him as he did not dispose  any goods.

Further that the Applicant is misleading the court in terms of the matrimonial properties which is shared and the same applies to him and the 2nd Respondent as they are a couple and had purchased the property as their investment.

The Application was canvassed by way of  written submissions and on the 13th December 2019, the trial Court delivered its Ruling  and dismissed the Application and  stated ;

“I agree with the Plaintiffs’ counsel submissions that the defendant was  represented by learned counsel  through-out the trial  including at the  time judgment was delivered on 27th September 2018.

on the contention that  the properties belong to third parties, I am of the view  that the proper  procedure  ought to be predicated under order 22 rule 51  of the rules and under  order 21 architecture, there are provided alternatives venues  by which the owner  of property  sold in execution  a person having  interest in such  property  could set such a sale aside.

The third parties did not invoke that provision of law. Be it as it may, there is no evidence placed to prove  properties attached and sold belong to third parties.

On the foregoing, I hereby dismiss   the application dated 3rd December  with costs save for prayer  d of the application  where the accounts of sale  are to be rendered within 14 days  from today’s date.

The Appellant was aggrieved by the above determination of the Court and Order  thereon and she has sought to challenge the said Ruling through the Amended Memorandum of Appeal dated  on 13th February 2020 . The Appellant sought for orders that the Court;

a) Re evaluate  the evidence / pleadings  Notice of Motion dated 2nd  December 2018  supporting further Affidavit , replying Affidavit and submissions  in the Chief Magistrates Court record and uphold  the appeal and set aside the Ruling  delivered in Thika CMCC No. 1252/15  on 13th February 2019.

b) Grant the Appellant an opportunity to prosecute her case  by giving evidence and case be determined on merit.

c) Issue an order lifting the attachment / proclamation unconditionally.

d) Costs of this Appeal be borne by the  Respondent

The grounds in support of the Appeal are:-

1. The Learned trial  magistrate  erred in Law  and in fact  by failing  to resolve  the issue  that the Appellant  was not notified of the hearing date hence reason  for non attendance  in court thereby  denied opportunity  to prosecute her case.

2. The Learned Trial Magistrate  erred in Law and in fact  in under  evaluating  the facts raised  in the supporting Affidavits which fact were weighty  hence arriving at a wrong conclusion.

3. The Learned Trial Magistrate erred in Law  and in fact in considering  extraneous matters  hence arriving  at a wrong decision in favour  of the Respondents.

4.  The Learned Trial Magistrate erred in  Law and in  fact in considering  irrelevant  and unproved facts  which were irrelevant  to the issues  before the court  contained in the Application  hence disregarding  the Applicant’s  application without justifiable  reason.

5.  The Learned Trial Magistrate  erred in Law and in fact  by quoting a decided case  without analyzing the issues involved and  the relevance  to the Appellant’s  case hence  making an erroneous decision.

6. The Learned Magistrate  misdirected himself by ignoring  the pending  objection proceedings  filed by the  3rd party  under the relevant provisions of the law.

7. The Learned trial  Magistrate  misdirected himself by allowing  the accounts  of sale  to be rendered and failed to appreciate  the fact  that the Judgment  was erroneous  hence making a contradictory decision.

8. The Learned magistrate  erred in law and in fact  by not finding  that the Appellant  brought  her Application  by invoking  the relevant  provision  of the Law and hence  made an erroneous decision.

9. The Learned Magistrate  dismissed the Appellant’s  application   without basing  his decision on any valid  guiding provisions  and or principles of Law.

10. The Learned Trial Magistrate  failed to consider  the contents  of the supporting  and further  affidavits  exhibits submissions  tendered by the Appellant  hence arrive at an unfair  and erroneous decision.

On29th April  2020, the Court directed that the Appeal be canvassed by way of written submissions and in compliance with the said directive  the  Appellant through the  Law Firm of K. Museti & Company  Advocatesfiled her written submissions on 6th November 2020, andsubmitted that there is no evidence before Court that the Appellant was  informed of the hearing  date and failed to turn up . That the Respondent knew that the Appellant disappeared after the previous Judgment  was set aside  hence confirming communication  breakdown  between the Appellant and her Advocates . It was further submitted that the  evidence that was tendered before Court was scanty . That Advocate Magu did not inform the Court whether the  Appellant was informed of the hearing .The Appellant urged the Court to allow the Appeal.

The Respondents through the Law Firm of  Khadula  & ASA  Associates Advocates  filed their written submissions dated 29th October 2020, and submitted  that the  subject  matter  no longer exists and that  no useful  purpose  would be served by allowing the appeal  as the Appellant denied herself  the granted opportunity to be heard  and the same will be a  process in futility   as the  suit property was sold to a third party.  It was further submitted that the Appellant is guilty of laches and has exhibited a general lack of candor  in the general proceedings to warrant  for the Appeal to be allowed as she was allowed  fair hearing when the Court set aside the Interlocutory Judgment  and staying of the Execution process but still undermined the Courts power and discretion. That the Court’s discretion cannot be used to assist  a person which has deliberately sought to evade  or otherwise obstruct justice.  The Court was urged to dismiss the Appeal.

As this is a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78of theCivil Procedure Act. See the case of Selle ….Vs… Associated Motor Boat Co. [1968] EA 123 where the Court held that;

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).

The  Court has carefully considered the   Memorandum of Appeal, the written submissions by the parties the evidence in the subordinate Court and the Court finds that the issue for determination is whether the  Memorandum of Appeal is merited.

In the Notice of Motion Application dated  3rd December 2018, the Appellant had sought  for the setting aside of the Judgment of the Court  dated 27th September 2018,   on the grounds that she was never informed of the date of the hearing and therefore never given a chance to prosecute her case. The Appellant has faulted the trial Court for failing to resolve the issue that she was not notified of the hearing date.

The Court has gone through the proceedings of the lower Court  and notes that  on 19th April 2018,when the matter came up for hearing Mr. Magu appeared for the Appellant  and cross examined the Respondent during the  hearing. Further that the said Counsel when called upon to prosecute the Appellants case, he closed the Defense case without calling any witnesses. Further that when the matter came on  24th May 2018, to confirm the filing of written submissions, the Appellant was once again represented  by a Mr. Kaburu,who was holding brief  forMr. Kimbofor the Appellant.  When the matter came up for Judgment, the Appellant was once again represented by an advocate. It is thus not in doubt that the Appellant was represented by an advocate throughout the proceedings up to Judgment delivery and was afforded an opportunity to be heard.

Though the Appellant sought to claim that the Advocate kept her in the dark, the Court has not seen any evidence that proves the same. There is no evidence that the Appellant has filed any complaint of wrongdoings against the said Advocate or there is no claim that the said  Advocate did not have instructions to represent her as the Advocates even filed submissions in the matter . It is trite that he who alleges must prove and the Appellant has failed to prove the same.

The guiding provisions of law with regards to setting aside Judgment is to be found  in Order 12 Rule 7 of the Civil Procedure Rules provides:-

"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 may be just."

Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides:-

"The court may set aside an order made ex parte"

From the above provisions of law, it is very clear that the Court has discretion to set aside or not to set aside an exparte judgment.  Such discretion must be exercised judiciously.  In deciding the same the Court is guided by the decision of the Court of Appeal in the case of James Kanyiita Nderitu & Another [2016] eKLR,  where the Court of Appeal stated thus:

“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment, among others. See Mbogo & Another –vs- Shah (1968) EA 98, Patel –vs- E.A. Cargo Handling services Ltd (1975) E.A. 75, Chemwolo & Another –vs- Kubende (1986) KLR 492 and CMC Holdings –vs- Nzioka [2004] I KLR 173.

In an irregular default judgment, on the other hand; judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”

The Court having found and held that  the Appellant was served with the hearing and represented in the proceedings, it further finds that a regular Judgment was entered as against the Appellant.

Order 12 Rule 7 of the Civil Procedure Rules provides that 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. The power to set aside ex parte orders are discretionary and the Court must use its discretion to come to a conclusion while also ensuring that Justice has been done.  The Court in Patel….Vs….E.A Cargo Handling  Services Ltd (1974) EA 75, held that:-

“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just . The main concern of the Court is to do Justice to the parties and the court will not impose conditions on itself to feter the wide discretion given to it by the Rules.’’

In the instant case, the  Appellant was well represented in the suit. The Court finds that the Appellant has not satisfied it that she has any basis  upon which the Judgment sought to be set aside to warrant it exercise its discretion and set aside the said Judgment.  Therefore, this Court  finds and holds that the trial Court did not misapprehend  the law to warrant it  to interfere with the said discretion.

Having held that the Judgment was in order, the Court finds that then there would have been no reason for the Court to lift the attachment orders.

Having now carefully re-evaluated and re-assessed the available evidence before the trial court and the Memorandum of Appeal together with the written submissions, this Court finds that the trial Magistrate arrived at a proper determination and thus finds no reason to upset the same.

The upshot of the foregoing is that the Appellant’s Appeal is found not merited and consequently, the said Appeal is disallowed entirely and the Ruling  and Order of the trial court is upheld with costs to the Respondents.

It is so ordered.

Dated, signed and Delivered at Thika this 25th day of March 2021

L. GACHERU

JUDGE

25/3/2021

Court Assistant - Dominic

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgement has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Appellant

No appearance for the 1st Respondent

No appearance for the 2nd Respondent

L. GACHERU

JUDGE

25/3/2021