[2018] KEHC 6292 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

CIVIL APPEAL NO. 52 OF 2016

BENJO TRAVELLERS (K) LTD...........................APPELLANT

VERSUS

JUSTUS KAMENYA MWASYA(Suing as the

legalrepresentative of theEstate of

KIVELENGE KAMEYA (DECEASED)....1ST RESPONDENT

BENJAMIN MAINA KIHORO..................2ND RESPONDENT

J U D G M E N T

1. Benjo Travellers (K) Limited,the Appellant was the 2nd Defendant in a suit instituted by the 1st Respondent, Justus Kamenya Mwasyawho sued it jointly with the 2nd Respondent herein, Benjamin Maina Kihoro.The Appellant was sued in his capacity as the registered owner of motor-vehicle registration number KAK 069H Mitsubishi Minibuswhile the 2nd Respondent was the owner of motor-vehicle registration number KAQ 296E Toyota Hiace.

2. The claim arose out of a road traffic accident that occurred on the 25th March, 2005where Kivelenge Kameya(Deceased) was travelling in motor-vehicle registration number KAQ 298Ealong the Kitui-Kanyonyo Road which collided with motor-vehicle registration number KAK 069H.A claim that was for special damages in the sum of Kshs. 15,200/=general damages under the Fatal Accidents Actand the Law Reform Act.

3. The 2nd Respondent filed a statement of defence, denying liability and in the alternative he stated that if the accident occurred it was solely and/or substantially contributed to by the negligence of the driver and owner of the motor-vehicle registration No. KAK 069H.He also filed a Notice of Claim against the Appellant seeking the remedy of indemnity and/or contribution in full/or to such extent as the Court could decide; in respect of the claim by the Plaintiff as against the Appellant.

4. The matter proceeded exparte. An application was filed by the Appellant seeking to set aside the exparte proceedings conducted on two (2) separate days, the 12th September, 2013and 27th March, 2014,to allow the Appellant to participate in the proceedings by defending the suit. The application was dismissed by the trial Magistrate.

5. Being dissatisfied with the Ruling and subsequent order in an amended Memorandum of Appeal, the Appellant appealed on grounds that:

(i) The Court erred in law and in fact in finding that the defendant did not file its submissions to the application dated 10th April, 2014when it has indeed filed the same.

(ii) The Court erred in law and in fact in finding that failure to attend Court by the Defendant’s Counsel on the 12th September, 2013and 27th March, 2014was not justified while indeed there were good reasons for the non attendance.

(iii) The Court erred in law and in fact in failing to consider the 1st Defendant’s submissions in support of the application dated 10th April, 2014.

(iv) The Court erred in fact and in law in finding that the 1st Defendant is bent on delaying the course of justice which is not true in the circumstances of the case.

(v) The Court erred in law and in fact in finding that the defendant is not interested in defending the matter which is not true.

6. It prayed for the Ruling to be set aside and/or varied so that the proceedings of the 12th September, 2013and 27th March, 2014and all consequential orders would stand set aside to enable it file a defence, Order 11of the Civil Procedure Rulesbe complied with and that the matter be remitted to the Subordinate Court for a fresh hearing.

7. The Appeal was canvassed by way of written submissions. In highlighting submissions Mr. Mathiru,Counsel for Appellant stated that submissions were filed on the 4th June, 2014therefore the Appellant was condemned unheard. That the mistake occurred on the 12th September, 2013when Counsel failed to diarize the matter but on the 24th March, 2014she was unwell. Their firm of advocates called Mr. Mwalimu Advocateto instruct him to hold their brief but he was not available. He urged the Court to find that the explanation given was reasonable.

8. In response, Mr. Mburu,Counsel for the 1st Respondent stated that it was not stated that when the matter came up for mention on 15th May, 2014submissions had been filed. Time within which they were to file submissions was extended to 28th May, 2014but submissions were not filed. That it was incumbent upon the Appellant to ensure submissions were on record.

9. Further, he argued that on 12th September, 2013the matter proceeded after the Appellant failed to attend Court. And on the 24th October, 2013after the Court was notified of the absence of the Appellant’s Counsel following her appointment to the Higher Bench, it was indulged and an adjournment granted. And even after the Appellant was granted the opportunity to instruct another advocate the subsequent advocate who came on record did not attend Court.

10. Being an Appellate Court, I am duty bound to re-evaluate the record and decision by the trial Magistrate and reach my own conclusion.

11. The orders that were sought before the Lower Court were discretionary in nature. In the case of Shabbir Din vs. Ram Parkash Anand (1955) 22 EAC A 48, 51it was stated that a discretion of the Court to set aside exparte orders is to be exercised by a Court depending on facts of a particular case. The manner in which the discretion should be exercised could not be indicated.

12. This clearly means that the Court has a wide discretion which should however be exercised judicially.

13. The question of such a discretion was also considered in the case of Shah vs. Mbogo (1966) EA 166where the Court stated that:

“This discretion is intended to be exercised to avoid injustice or hardship resulting from accident inadvertence, or excusable mistake or error, but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.”

14. The learned Magistrate has been faulted for not addressing herself on the Court record as she failed to find and consider submissions by the Appellant in respect of the application. Looking at the Ruling of the learned Magistrate it is apparent that she did not see or consider the submissions. I have perused the original file which does not have the submissions filed by the Appellant. However, the submissions filed by the Appellant were received by the Court on the 4th June, 2018as seen on a copy with the stamp impression of the Court that is part of the record of Appeal.

15. Although the learned Magistrate did not consider submissions, she considered arguments of both parties as stated in affidavit evidence. It can therefore not be stated with certainty that the Appellant’s case was not considered at all by the trial Court. In the premises the Appellant was not condemned unheard.

16. It is admitted by the Appellant that its advocate did not attend Court on the 12thday of September, 2013. The advocate had been duly notified of the hearing date. Counsel averred that the matter was not diarized. When the matter came up on the 24th October, 2013the Appellant’s Counsel was aware of the matter. The Court was notified that she was indisposed by Mr. Mwalimu Advocatewho held her brief. The Court noted the fact that the matter was old having been filed in 2005. She granted the Appellant a final adjournment. When the matter came up on the 23rd January, 2014it turned out that the Appellant’s Counsel had been nominated for appointment as a Judge of the Superior Court. It was stated that the Appellant would have 30 dayswithin which to instruct another advocate. Following the development, the learned Magistrate granted the adjournment sought. She granted the Appellant two (2) months within which to instruct an advocate. When the matter came up there was no appearance on the part of Defendants therefore the matter proceeded.

17. The learned Magistrate exercised the discretion by granting the Appellant the opportunity of making an appearance and defending the case. She did not shut out the Appellant.

18. What is intriguing in the matter is the fact that the Appellant filed a Memorandum of Appearance but did not file any defence. No explanation was given by Counsel in the affidavit in support of the application as to why it was the case. Although it was represented, it had no intention of filing a statement of defence. The thought of seeking to file a statement of defence came up twelve (12) years down the line. In the circumstances it was not erroneous on the part of the learned Magistrate to reach a finding that the intention of the Appellant herein was to delay the course of justice.

19. In the premises, the Appeal lacks merit and is dismissed with costs to the 1st Respondent.

20. Consequently the file shall be placed before the Chief Magistrate’s Court for purposes of writing a Judgment.

21. Mention on the 20th June, 2018.

22. It is so ordered.

Dated, Signedand Deliveredat Kituithis 16thday of May, 2018.

L. N. MUTENDE

JUDGE