[2022] KEHC 1515 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 169 OF 2020

ALEXANDER CHOCOLATIER LIMITED..............................................APPELLANT

VERSUS

CREAM GOLD ENTERPRISES ...........................................................RESPONDENT

(Being an appeal from the ruling of the Chief Magistrates Court at Milimani Commercial Courts at Nairobi delivered on 30th April 2020 by the Hon. L. L. Gicheha (Mrs.) CM)

JUDGMENT

1) Cream Gold Enterprises, the respondent herein, filed an action before the Chief Magistrate’s Court seeking to recover a sum of ksh.519,600/= from Alexander Chocolatier Ltd, the appellant herein, being the amount due and owing for the delivery of cream and butter. The appellant filed a defence to deny the respondent’s claim.

2) The suit proceeded for hearing exparte when the appellant and its counsel failed to attend court. The appellant’s (defendant’s) case was closed without evidence being presented. On 29th October, 2019 judgment was entered in favour of the respondent and against the appellant in the sum of ksh.519,600/= plus costs and interest.

3) Being aggrieved by the decision of the trial magistrate, the appellant filed the application dated 17th December 2019 whereof it sought to have the exparte judgment and proceedings set aside.

4) The respondent opposed the application. Hon. L. L. Gicheha, learned Chief Magistrate heard and dismissed the application on 30th April 2020. Being dissatisfied with the dismissal order, the appellant preferred this appeal and put forward the following grounds:

i. That the learned trial magistrate erred in law and in fact in dismissing the application dated 17th December 2019 seeking to set aside ex-parte judgment against the defendant.

ii. That the learned trial magistrate erred in law and in fact in holding that the failure of the defendant to attend court was not because of an excusable mistake.

iii. That the learned trial magistrate erred in law and in fact in holding that the draft defence by the defendant did not raise any issues worthy of going to trial.

iv. That the learned trial magistrate erred in law and in fact in holding that the consequences of failure by counsel to attend court could be visited on the defendant.

v. That the learned trial magistrate erred in law and in fact in holding that the defendant was guilty of not being diligent in following up on the matter with their then advocates.

vi. That the learned trial magistrate erred in law and in fact in holding that the draft defence did not raise any triable issues worthy of going to trial.

vii. That the learned trial magistrate erred in law and in fact in going into the merits of the draft defence and holding that the defendant had not annexed any evidence of payment to show the amount claimed was paid nor documents to prove that they rejected the goods.

viii. That the learned trial magistrate erred in law and in fact in failing to appreciate the evidence on payment of the amount claimed by the plaintiff or proof that the goods were rejected could only be adduced by the defendant at a full hearing of the suit on merit.

ix. That the learned trial magistrate erred in law and in fact in failing to appreciate that under the law of evidence the burden of proof in civil matters is upon the plaintiff to prove their case on a balance of probability and not upon the defendant to disprove the same.

x. That the learned trial magistrate erred in law and in fact in failing to appreciate that the appellant had as a sign of good faith and as security for payment of the decretal amount issued a bankers cheque for the full sum which was ready to be deposited into court.

xi. That the learned trial magistrate erred in law and in fact in failing to appreciate the facts and circumstances of the case and the submissions made on behalf of the appellant and therefore exercised her discretion on wrong principles thereby arriving at a wrong decision.

5) When the appeal came up for hearing learned counsels appearing in this appeal recorded a consent order to have the appeal disposed of by written submissions.

6) I have re-evaluated the arguments which were made before the trial court in support and against the appellant’s motion dated 17th December 2019. I have also considered the rival written submissions plus the authorities.

7) Though the appellant put forward a total of eleven grounds of appeal, two main grounds commend themselves for determination. First, whether the appellant had provided plausible reasons for its failure to attend court for the hearing of the suit to warrant the court to exercise its discretion in its favour.

Secondly, whether the appellant’s defence raised triable issues worthy to go for trial.

8) On the first issue it is the submission of the appellant that itpresented justifiable reasons to warrant the court to exercise its discretion to allow the application dated 17th December 2019. The appellant pointed out that it had instructed the firm of Mwilu and Co. Advocates to represent it in defence of the suit.

9) It is the appellant’s averment that the aforesaid firm of advocates was served with an invitation to fix a hearing date, mention notices, hearing notices and a notice of entry of judgment. It is the submission of the appellant that despite service of the aforesaid documents being effected, the firm of Mwilu & Co. Advocates failed to inform the appellant of any developments in the matter.

10) It is stated that the appellant came to know that judgment had been entered and delivered against it when it was informed by the respondent’s advocate. The appellant beseeched this court to find that its failure to appear in court or defend the suit was not deliberate but was due to the mistake of their erstwhile advocate. This court was urged to fault the decision of the learned Chief Magistrate in dismissing its application.

11) The respondent opposed the appeal arguing that the appellant did not demonstrate to the trial court that it was entitled to benefit from the court’s discretion to set aside the exparte judgment.

12) It is not in dispute that the suit before the trial court proceeded for hearing exparte when the appellant and its advocate failed to attend the hearing of the case. It is also not disputed that the appellants erstwhile advocate was served with all the court processes. The learned Chief Magistrate found that there was excusable mistake on the part of the appellant’s erstwhile advocate.

13) She further noted that the appellant had failed to make a follow-up of its case and that it even failed to take any step even after being informed of the judgment by way of email.

14) After a careful re-evaluation of the arguments presented before the trial court, I find that the appellant did not establish that its erstwhile advocate made a genuine mistake. The record seems to suggest that the appellant’s erstwhile advocate deliberately failed to contact the appellant. It is also apparent that the erstwhile advocate failed to attend court despite having been served with a hearing notice. In the circumstances of this matter, the client (appellant) will be left to suffer for the non genuine mistakes of its advocate.

15) The second issue which requires the determination of this court is whether the appellant’s defence raises triable issues. It is the submission of the appellant that its defence raised triable issues which entitled it to defend the suit. The appellant pointed out that the goods purportedly supplied were rejected for being substandard.

16) It is the submission of the respondent that the appellant’s defence was a sham with no triable issues. The learned chief magistrate expressly stated that she went through the defence and found no triable issues save for the claim that there was no delivery of the goods.

17) The learned chief magistrate further found that the plaintiff had rebutted the appellant’s assertion by producing delivery notes. After a careful re-evaluation of the case before the trial court, I am convinced that the appellant’s defence raises no triable issue that can go for trial.

18) In the end, I find no merit in this appeal. The same isdismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

…….….……………..

J. K. SERGON

JUDGE

IN THE PRESENCE OF:

……………………………. FOR THE APPELLANT

……………………………. FOR THE RESPONDENT