[2023] KEHC 27336 (KLR)

Car & General (Trading) Limited v Ngui & another (Civil Appeal E067 of 2021) [2023] KEHC 27336 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27336 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E067 of 2021

DKN Magare, J

December 14, 2023

Between

Car & General (Trading) Limited

Appellant

and

Fedelis Susan Ngui

1st Respondent

Stephen Matiko Mwita

2nd Respondent

Judgment

1. Some matters require a very rare sense of Judgment. When I was growing up it was called “common sense”. With time this sense may soon be administered intravenously. The Plaintiff filed suit against the Defendants who are the beneficial owners and Registered Owners. The 1st Defendant did not enter appearance. Interlocutory Judgement was entered. As the name of the second Defendant suggests it is a trading name. The Respondent is said to have been hit by a Motor Vehicle Registration No. KTWA 788S along Mshomoroni Road.

2. The Plaintiff was said to be crossing the road. The Registration number indicates that the same related to a three-wheeler, Tuk tuk.

3. The Police Abstract indicated that the owner was the 1st Defendant. This was not challenged. The 1st Respondent also pleaded so.

4. Under Section 107 – 109 of the Evidence Act, the burden of proof of anything is on the party alleging. The said three-wheeler was reportedly insured by Xplico Insurance Co. Ltd. A search indicated that at 11/12/2013 the Registered owner was Car and General Trading Ltd.

5. I note that even in formal proof, the Plaintiff is under duty to proof the issue of ownership. There is a stark difference between the police abstract and the search. However, I note that as at the time of delivery of the judgment there was an Application on record. It was neither allowed nor dismissed. The court ought to have dealt with it one way or another. The court had also ordered that the 1st Defendant be served. I cannot trace the affidavit of service.

6. It is thus my considered view that the judgment was premature. In the case of D.T. Dobie & Company [Kenya] Ltd v. Muchiri [1982] KLR 1. Madan J.A. (as he then was) said:-“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

7. It is not good to drive a party away from a seat of justice. I do not find the judgment sustainable. It is a poisoned tree and a fruit of lapse of procedure. The Respondent cannot obtain benefit from a poisoned tree.

8. The judgment must give way. I will not deal with merits as the matter is to be reheard. I have read the appeal and had a very good sense of what ought to be done. In order to avoid any embarrassment, I shall not feel with the same.

9. I therefore allow the appeal. Nevertheless given that the Respondents did not poison the tree, each party will bear their own costs.

Determination 10. The Court therefore makes the following orders: -a.The judgment entered on 15/ 4 /2021 is premature and untenable as the Appellant and the 1st Defendant were not heard.b.The entire Judgment is set aside. In lieu thereof, I direct that the matter be heard afresh before another Magistrate other than Maureen Nabibya. For avoidance of doubt this matter shall be heard denovo.c.The Application dated 8/4/2021 is thus spent.d.The right to be heard is non derogable.e.Each party to bear its costs.f.File is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Wachira for 1st RespondentNo appearance for the PlaintiffCourt Assistant - BrianPage 2 of 2 M.D. KIZITO, J.