[2022] KEHC 1554 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 488 OF 2019

BRITISH AMERICAN INSURANCE CO. LTD.........................................PPELLANT

-VERSUS-

PLAN & PLACE INSURANCE BROKERS LTD................................RESPONDENT

(Being an appeal from the judgment and decree, and the ruling delivered by the Hon. D. O. Ocharo on the 7th December 2018 and 9th August 2019 respectively in Milimani CMCC no. 7796 of 2014)

JUDGMENT

1) Plan and Place Insurance Brokers Ltd, the respondent herein sued British American Insurance Co. (K) Ltd, the appellant herein, before the Chief Magistrates Court seeking for inter alia to be paid a sum of ksh.5,159,854/= being an outstanding brokerage commissions.

2) The appellant filed a defence to deny the respondent’s claim. The suit proceeded for hearing exparte before Hon. D. A. Ocharo. On 7th December 2018, the learned Principal delivered his judgment in favour of the respondent in the sum of ksh.5,159,954 plus interest and further dismissed the appellant’s counter-claim.

3) Being dissatisfied, the appellant filed before the trial court the application dated 28th March 2019 in which it sought to have the judgment set aside. The learned Principal Magistrate considered the aforesaid application and had it dismissed on 9th August 2019.

4) Being aggrieved, the appellant preferred this appeal and put forward the following grounds:-

i. The learned trial magistrate erred in law and fact in failing to find that the appellant had given sufficient reason to explain their failure to attend the hearing at the lower court case.

ii. The learned trial magistrate erred in law and fact in failing to set aside the judgment despite the fact that the case was heard on day when it had been listed as a mention.

iii. The learned trial magistrate erred in law and fact by declining to exercise its discretion judiciously in favour of the appellant despite clear evidence to the effect that the appellant was not notified of the various processes during and after the initial hearing of the case.

iv. The learned trial magistrate erred in law and fact by making a finding on the merits of the appellants case without the benefit of both sides.

v. The learned trial magistrate erred in law and fact in visiting the mistake of counsel upon an innocent and willing litigant herein the appellant under the ruling delivered on 9th August 2019.

vi. The learned trial magistrate erred in law and fact by delivering judgment and decree on the 7th of December 2018 without hearing the appellant’s defence and counter-claim on merit.

vii. The learned trial magistrate erred in law and fact by failing to consider the evidence given to the appellant’s application to set aside the judgment and decree delivered on the 7th December 2018.

viii. The learned trial magistrate erred in law and fact in the way he weighed the evidence tendered in curt and in finding that the appellant’s defence and counter claim in Milimani CMCC no. 7796 of 2014 raised no triable issues vide his ruling delivered on 9th August 2019.

ix. The learned trial magistrate erred in law and fact by denying the appellant its constitutional right to be heard as envisaged under Article 50 and read together with Article 25of the Constitution of Kenya 2010.

5) When the appeal came up for hearing, learned counsels were permitted to file and exchange written submissions. At the time of writing this judgment, the appellant was the only party which had filed its submissions.

6) I have re-evaluated the arguments put forward in support and against the appellant’s motion dated 28th March 2019. I have also considered the appellant’s written submission plus the authorities cited.

7) It is not in dispute that the learned Principal Magistrate proceeded to hear the suit in the absence of the appellant and its advocates. It is also apparent from the record that judgment was delivered without notice to the appellant. The record further shows that the suit was fixed for hearing on 27/9/2018 but was cause listed as a mention but nevertheless, the suit proceed for hearing.

8) In the application dated 28th March 2019, the appellant argued that the case was cause listed not as a hearing but as a mention and that is why the appellant and its counsel did not attend court.

9) The appellant also pointed out that the appellant had a good defence. For the above reasons the appellant beseeched the trial magistrate to set aside the exparte judgment and grant it an opportunity to be heard.

10) The respondent opposed the appellant’s application arguing that a hearing notice had been served upon its advocate though the case had been cause listed as a mention on the date fixed for hearing.

11) In his ruling the learned Principal Magistrate noted that the respondent’s advocate took an exparte hearing date at the registry and found that a hearing notice was served upon the appellant’s advocate and that the appellant’s advocate received the hearing notice without protest.

12) The learned principal magistrate further noted that the appellant and its counsel were not present on the hearing date which date was stated as a mention. The trial magistrate also took note of the appellant advocate’s assertion that he advised the appellant not to attend court because the case had been listed as a mention and not as a hearing.

13) However, the learned Principal Magistrate dismissed the application stating the appellant having notice of the hearing date did not have any reason not to attend court. The learned trial magistrate concluded that the appellant is therefore a litigant who seeks to deliberately obstruct or delay the cause of justice. He also concluded that the appellant’s defence raises no triable issues.

14) On appeal, the appellant urged this court to find that its application was unfairly dismissed yet it had given sufficient explanation why it failed to attend court. It is clear from the material placed before this court that the appellant had stated that since the case was cause listed as a mention it did not attend court.

15) Though the suit had been fixed for hearing exparte, the fact remains that prima facie the same was cause listed as a mention. Any party looking at the cause list will obviously notice that the case was coming up for mention.

16) The learned Principal magistrate stated that the appellant was hellbent to obstruct and delay the cause of justice. With respect, the aforesaid conclusion was not supported by the affidavit evidence supplied. There was no evidence to show that the appellant had deliberately failed to attend court.

17) The appellant’s advocate clearly stated that he advised his client not to attend court since the case had not been listed for hearing. Where a matter has been listed for mention no substantive orders can be made as it happened in the instant appeal.

18) I am satisfied the appellant’s application had merits hence it was erroneously dismissed.

19) In the end, I find the appellant’s appeal to be with merits. It is allowed thus giving rise to issuance of the following orders:

i. The order made on 9th August 2019 dismissing the appellant’s application dated 28th March 2019 is set aside and is substituted with an order allowing the motion.

ii. The judgment and the resultant decree made on 7th December 2018 together with the proceedings are hereby set aside.

iii. The order dismissing the counter-claim is set aside.

iv. The suit plus the counter-claim to be heard afresh on priority basis by another magistrate jurisdiction of other than Hon. D. A. Ocharo, learned Principal Magistrate.

v. Each party to bear their own costs of the appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of March, 2022.

…….….……………..

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the Respondent