Waweru v Aketch [2022] KEHC 10061 (KLR)

Waweru v Aketch (Miscellaneous Application E005 of 2022) [2022] KEHC 10061 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10061 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application E005 of 2022

RB Ngetich, J

July 21, 2022

Between

David Mbugua Waweru

Applicant

and

Stephanie Awour Aketch

Respondent

Ruling

1. The applicant herein moved this honourable court vide a Notice of Motion filed under a certificate of urgency on January 24, 2022 seeking a stay of the judgment. The application seeks the following orders:a.Spent.b.That this Honourable Court be pleased to arrest the judgment slated for 27th January 2022 pending the hearing and determination of this application.c.That this Honourable Court be pleased to order stay of any further proceedings in Kikuyu Civil Suit 255 of 2018 pending the hearing and determination of this application.d.That this Honourable Court is pleased to set aside the proceedings of 27th October 2021in Kikuyu SPMCC 225 of 2018 to be re-opened for the Defendant/Applicant to be heard and defend the suit.e.That this Honourable Court is pleased to order a stay of the proceedings of October 27, 2021 to allow the Applicant an equal opportunity to participate in the hearing of this matter and cross-examine the Plaintiff’s witnesses and also call in their key witnesses pending the hearing and determination of this Appeal.f.That the application be heard inter parties on such date and time as this honourable court may direct.g.Costs be paid by the Respondents.

2. The application is premised on the grounds that the applicant was not heard as the defence case was closed without the participation of the applicant. The defence case was closed on 27th October, 2021. The applicant averred that he was never served with pleadings in the Kikuyu SPMCC No. 225 of 2018 and judgment is set to be delivered on 27th January 2022, the applicant is aggrieved by the Proceedings of October 27, 2021.

3. The applicant averred that the claim is a material damage claim and the applicant is apprehensive the respondent will proceed to execute if the judgment is delivered. The applicant will suffer irreparable loss as the judgment award might be too high and unreasonable since cross-examination of the Plaintiff witness was not done and the Respondent will suffer no prejudice.

4. The application is supported by the annexed affidavit of Morine King`e sworn on 24th January 2022. He averred that he was condemned unheard; that he deserves a fair hearing, and should not be locked out as this is a material damage claim. The applicant must cross-examine the respondent’s witness.

5. The application is opposed by the replying affidavit of Luchemo Brenda Akhonya, sworn on 10th May 2022 and filed on 2nd June 2022. She averred that the application is brought in bad faith and deliberately intends to mislead the court; that Kikuyu SPMCC No. 255 of 2018 was never scheduled for hearing on 27th October, 2021.

6. She further averred that the pleadings and hearing notice for 1st November 2021 were served upon the firm of Kairu Mc court on 1st September 2021 through email. In response, the firm of Kairu Mc Court indicated they were not on record; that the applicant was served through the new advocate on record as per the email address provided.

7. She further averred that on 1st November 2021, the court was satisfied there was proper service and proceeded with the matter ex-parte at 12. 30 pm. She averred that the applicant has not come to court with clean hands and is misleading the court as the matter has never proceeded before court 3 but before court 2.

8. She averred that the applicant has not filed witness statements and a bundle of documents and thus cannot purport to suffer any prejudice.

9. The court does not give orders in vain and thus as there are no proceedings in court for the 27th of October 2021 and prayers 4 and 5 should fail.

10. Directions were taken to have the matter canvassed by way of written submissions on 18th May, 2022 which both parties have complied.

Applicant’s Submissions 11. In submissions filed on 7th June 2022, the applicant submitted that the application is brought without delay and the applicant was not served with any mention notice for filing submissions, nor the judgment date; that the applicant did not intend to let the matter proceed undefended and mistake of the advocate of failing to diarise the matter should not be visited on the applicant.

12. Counsel further submitted that the applicant’s defence is merited with triable issues and it is in the interest of justice that the applicant is allowed to enable the court to arrive at a just determination of the proceedings before it as per Section 1,1A and 3A of the Civil Procedure Act.

13. Counsel submitted that the applicant will suffer prejudice if the application is dismissed and cited the case of Hassan Hashi Shirwa vs Swalahudikn Mohamed Ahmed (2011) eKLR where the court allowed the re-opening of a case after both parties had closed their case.

14. Counsel urged the court to allow the application as there is no mischief exhibited on the part of the applicant and proceed to determine the matter expeditiously.

Respondent’s Submissions 15. The Respondent filed submissions on 10th June, 2022 and submitted that the application is brought in bad faith and is intended to mislead the court as Kikuyu SPMCC No.255 of 2018 proceeded unopposed in court 2 and not court 3 as stated by the applicant.

16. Counsel submitted that the applicant was properly served with a hearing notice for the main suit and proceeded ex-parte when the applicant failed to attend court and submitted that the applicant has come to court with unclean hands; equity aids the vigilant and not the indolent. Thus the trial court proceeding with the matter and proceeding to give a judgment date did so judiciously.

17. The respondent further submitted that the applicant has not raised any issues and the court cannot consider unpleaded issues raised in the submissions;that the applicant has triggered the respondent in unnecessary litigation.

18. Counsel further submitted that the court does not issue orders in vain, orders ought to be complied with and as such, there were no proceedings for 27th October 2020, there is nothing to set aside and or stayed. Further, the applicant has not availed to court any credible/valid reason why he did not attend court at the hearing on 1st November 2021. The respondent urged court to dismiss the application.

Analysis and Determination 19. I have considered the grounds of application, averments herein and submissions filed and wish to consider whether sufficient reasons have been advanced to warrant staying of proceeding of Kikuyu SPMCC No. 255 of 2018.

20. From the record, the applicant was served through the previous advocate Kairu Mc court, as well as the newly appointed advocate Kimondo Gichoka. Counsel submitted that there was an omission on their part in that they mis diarized the date and mistake of the advocate should not be visited on the applicant.

21. The applicant argues he was not given a chance to defend the case, and the defence raises triable issues. I do note the applicant has not filed a draft defence for the court to look at the issues intended to be raised in the trial.

22. It is trite law that a party should not be condemned unheard. In the instant case, counsel who was on record did not attend court and the matter proceeded ex-parte. The issue of service is not denied, counsel stated that there was an omission on his part as the matter was mis- diarized leading to failure to attend court on the date of hearing. The trial court did satisfy itself that the service of the hearing notice to the applicant was proper and proceeded to hear the matter.

23. The matter was pending delivery of judgment at the time this application was heard. As I write this ruling ,there is no clear position as to whether judgment was delivered as scheduled for 27th January 2022.

24. If judgment has not been delivered, then this application has not been taken over by events. Assuming judgment has not been delivered, I agree with argument to the effect that a party should not be punished/suffer for mistake of counsel. There is no doubt that reopening will ocaasion delay in conclusion of this matter but I am of the view that according the applicant opportunity to be heard, will enable the court arrive at a fair and just determination.

25. On the argument that no orders for the 27th October 2021 to be set aside, in my view this is a technicality as it is not disputed that the matter in the trial court proceeded ex-parte and the same is pending delivery of judgment.

26. From the foregoing I see merit in the application and I am inclined to allow.

27. Final Orders:-1)In the event judgment has not been delivered, I hereby stay delivery of judgment resulting from Exparte proceedings.2)The Plaintiff’s case to be reopened and defendant allowed to participate in the trial.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 21ST DAY OF JULY, 2022. .....................................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court ClerkMs. Macharia holding brief for Ms. Kinge for ApplicantMs. Luchemo for Respondent