[2022] KEHC 12124 (KLR)

BBG v BDG (Divorce Cause 210 of 2014) [2022] KEHC 12124 (KLR) (Family) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12124 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Divorce Cause 210 of 2014

MA Odero, J

May 6, 2022

Between

BBG

Petitioner

and

BDG

Respondent

Ruling

1. Before this Court for determination is the Amended Notice of Motion dated October 29, 2021by which BBG (the Applicant) seeks the following orders:-“1. Spent.2. Spent3. Spent4. This Honourable court be pleased to set aside and/or vary the judgment delivered on July 30, 2021dismissing the Respondent/Applicant’s Cross-Petition.5. This Honourable court be pleased to set aside the ex parte proceedings of July 1, 2021. 6.This Honourable court be pleased to recall the Petitioner for cross-examination by the Cross-Petitioner’s counsel.7. This Honourable court be pleased to reinstate and re-open the cross-petitioners case to await hearing on merit.8. The costs of the application be in the cause.9. Any other order that this court may deem fit to grant.

2. The application was premised upon order 12 Rule 7, Order 9 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act Cap 24 Laws of Kenya and all enabling provisions of law and was supported by the Affidavit of even date and the Further Affidavit dated November 30, 2021 sworn by the Applicant.

3. The Petitioner/Respondent BDG opposed the application through his Replying Affidavit dated November 8, 2021. The application was canvased by way of written submissions. The Applicant filed the written submissions dated 30th November 2021 whilst the Respondent relied upon his written submissions dated 20th December 2021.

Background 4. The Petitioner herein had on October 28, 2021filed before the court a Petition dated October 27, 2014seeking the following –“(a)An order that the Hindu marriage existing between the Petitioner and the Respondent be judicially dissolved.(b)An order that the Respondent do forthwith vacate the Petitioner’s house at Plot Number xxx/xx/xxx Ngao Road F.2. (c)That the Respondent be condemned to pay costs of the proceedings.(d)Any other or better relief as the court may deem fit”.

5. The Respondent in the Divorce Petition (who is the Applicant herein) filed a Reply to the Petition and a Cross-Petition dated July 4, 2017in which she prayed that the Petition for Divorce be struck out and also prayed to be awarded maintenance Alimony.

6. The Petition came up for hearing in the High Court on 1st July 2021. On that date, neither the Respondent nor her Advocate were in court. The court having noted that the hearing date was taken by consent proceeded to hear the case notwithstanding the fact that the Respondent was absent.

7. On 30th July 2021 this court delivered its judgment in which the Petition was allowed and the marriage between the parties was dissolved.

8. The Respondent then filed this present application seeking to have the judgment of 30th July 2021 set aside and the Petition to be heard afresh.

9. The Applicant averred that on the date set for hearing of the petition her Advocate was away on maternity leave. That the Applicant herself had not been informed by the Advocate who took over the matter of the hearing date hence her non-attendance in court on that date.

10. The Applicant further avers that she is a foreigner who depended solely on Petitioner thus she will be greatly prejudiced if her Cross-Petition is not reinstated. That neither the Applicant nor her counsel were notified of the date for judgment and she only became aware that her cross-petition had been dismissed when her Advocate returned from maternity leave and perused the file. The Applicant urges that the present application has been brought without undue delay and prays that the same be allowed.

11. The Petitioner/Respondent opposed the application to have the matter reinstated. He submitted that the hearing date had been taken by consent and that failure of the Applicant and her Advocate to attend court for hearing was deliberate. That the Applicant was herself an indolent litigant and is now trying to push the blame for her non-attendance to her Advocate.

12. The Petitioner/Respondent averred that the judgment entered was regular, that the Applicant has not met the threshold required to set aside a regular judgment and urged the court to dismiss the application.

Analysis and Determination 13. I have carefully considered the application before this court, the Affidavit filed in Reply as well as the written submissions filed by both parties.

14. Order 12 Rule 7 of the Civil Procedure Rules 2010 provides as follows:-“Where under the order judgment has been entered or the suit has been dismissed, the court on application may set aside or vary the judgment or order on such terms as may be just”.

15. The discretion granted to a court to set aside a judgment must however be exercised in a limited and judicious manner. In the case of EWN & 2others vs Safaricom Limited[2014] eKLR the Court held as follows:-“The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel vs E.A. Cargo Handling Services Ltd) the discretion is intended to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error ….. The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the Plaint can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration vs Gasyali). It also goes without saying that the reason for failure to attend should be considered”.

16. Likewise in CMC Holdings Limited – vs – JMN(2004) KLR, it was held -“The law is now well settled that in an application for settling aside ex parte judgment, the court must consider not only reasons why the defence was not filed or for that matter why the applicant failed to turn up for hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues.”

17. The test for whether to allow an application to set aside a judgment is three fold-(i)whether a reasonable explanation has been advanced(ii)whether there is a defence on merits(iii)what prejudice if any will be suffered by the other party.

18. The Applicant states that her failure to appear on the hearing date was occasioned by the fact that her Advocate was away on maternity leave and that the lawyer who took over the matter failed to informed the Applicant of the hearing date. The Applicant has annexed to her supporting Affidavit copies of a series of text messages exchanged between herself and her Advocate (Annexture ‘BBG01’). It is clear from these that the Advocate on was record was on maternity leave.

19. Be that as it may it is trite that a suit belongs to the litigant. The Applicant cannot instruct counsel and then just sit back and wait to be informed of the progress of her case. As the ‘owner’ so to speak of the suit, the Applicant had an obligation to monitor the progress of her case. Had she done so I am sure the Applicant would have been fully aware of the allocated hearing date. In Savings & Loan Limited – vs Susan Wanjiru Muritu, Milimani HCCC No. 397 of 2002, Hon Justice Luka Kimaru stated as follows:-“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The Court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case…..(own emphasis)

20. The Applicant herein clearly did not bother to monitor the progress of her case. Had she done so she would have been fully aware of the hearing date and would have attended court on that date.

21. The Applicant submitted that she has a valid cross-petition which she is desirous of prosecuting. I have perused the said Cross-Petition. I am satisfied that it raises triable issues which the applicant ought to be granted an opportunity to ventilate.

22. The Petitioner/Respondent submits that given that judgment in this case has already been given the setting aside of said judgment will prejudice him. This court has to weigh the right of the applicant to be heard against any inconvenience the Petitioner/Respondent may suffer. This is a Divorce Petition and the outcome of the case affects the personal status of the parties. For this reason and despite my finding that the applicant was an indolent litigant, I am of the view that she nevertheless deserves the opportunity to prosecute her cross-Petition. Any inconvenience the Petitioner may suffer can be mitigated through an award of costs.

23. I therefore allow this application. The judgment delivered on July 30, 2021is hereby set aside. The Petition to be heard afresh and since this is a Divorce Cause the matter is hereby transferred to the Milimani Chief Magistrates Court for hearing and determination. Costs for this application will be met by the Applicant.

DATED IN NAIROBI THIS 6TH DAY OF MAY, 2022**.MAUREEN A. ODEROJUDGE