https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10142

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E116 OF 2024** **GATAMAYU DAIRY FARMERS** **CO-OPERATIVE SOCIETY .....................................APPELLANT** **-VERSUS-** **EARNEST MWAURA KABUTHIA T/A** **KAISA ANIMAL FEEDS.......................................RESPONDENT** (***Being an Appeal against the Ruling of the Senior Principal Magistrate at Kiambu Chief Magistrates Court, MCCC No. 122 of 2014, delivered on 5th June 2024 by the Honourable Peter Ooko)*** **JUDGMENT** 1. This is an appeal against the Ruling of the Honourable Peter Ooko, Senior Principal Magistrate, delivered at Kiambu Chief Magistrates Court on 5th June 2024. The Ruling dismissed the Appellant's Notice of Motion dated 18th November 2022 with costs to the Respondent. 2. The Respondent had sued the Appellant for the sum of Kshs.2,439,000/= being the value of animal feeds supplied to the Appellant in August 2012, on 30 days' credit but which were not paid for despite demand. 3. The suit proceeded exparte due to the Appellant's non-attendance in court. Judgment was delivered on 26th April 2016, in which the Appellant was found liable at 100% and ordered to pay the Respondent Kshs.2,439,000/= plus costs. 4. On 31st October 2022, and in execution of the decree, the Respondent engaged In Time Auctioneers, who proclaimed goods at the Appellant's premises situated at Kagwe Shopping Centre. The Appellant alleges to have become aware of the subsisting judgment at this point. 5. On 10th November 2022, the Appellant filed a Notice of Motion seeking stay of execution and setting aside of the Judgment entered on 26th April,2016 reinstatement of the suit. On 15th November 2022, without the Appellant's knowledge, the application came up in court and was dismissed for non-attendance and want of prosecution. 6. On 18th November 2022, the Appellant filed a further Notice of Motion seeking to review/set aside the orders made and to reinstate the application dated 10th November 2022. This application was eventually heard on written submissions and determined by the Honourable Chief Magistrate Peter Ooko on 5th June 2024, dismissing the application with costs, which ruling is the subject of this appeal. 7. The Appellant filed a Memorandum of Appeal dated 1st July 2024 raising three grounds of appeal: 1. That the Learned Trial Magistrate erred in law and in fact by unjustly punishing the Appellant on mistake and/or miscommunication of court. 2. That the Learned Trial Magistrate erred in law and in fact by failing to consider the Defendant's rights to be heard, a right that cannot be limited. 3. That the Learned Trial Magistrate erred in failing to exercise its discretion judiciously so as to meet the ends of justice. **Appellant's Submissions** 1. The Appellant, through their counsel, filed written submissions dated 7th March 2025 arguing that the Trial Magistrate erred by unjustly punishing the Appellant on account of mistake and/or miscommunication on the part of the court registry. The Appellant contends that its Counsel dutifully attended court on 15th November 2022 but did not find the matter on the cause list, and only learned of the dismissal on 18th November 2022 through a representative sent to court. 2. The Appellant submits that the Learned Trial Magistrate failed to exercise discretion judiciously. It relies on Order 9A Rule 10 of the Civil Procedure Rules 2010, which confers unlimited discretion on the court to set aside or vary a judgment entered in default. It further relies on Section 80 of the Civil Procedure Act which provides for review of judgments, and Order 45 Rule 1 of the Civil Procedure Rules, which allows any person aggrieved by a decree to apply for review on account of mistake or error apparent on the face of the record. 3. The Appellant further argues that the machinery being proclaimed was donated to it by the County Government of Kiambu as evidenced by a Memorandum of Understanding dated 2nd November 2015 and thus does not belong to the Respondent. It argues that its non-attendance was an inadvertent mistake occasioned by registry error, which should not be visited upon an innocent client. 4. The Appellant relies on the holding in **Frigonken Ltd v. Value Pak Food Ltd, HCCC No. 424 of 2010**, where it was held that a default judgment resulting from improper service is irregular and must be set aside ex debito justitiae**. Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664**, on the fundamental principle that no party should be condemned unheard and that decisions affecting their lives and property should not be reached behind their backs. **Bwire v. Wayo & Sailoki (Civil Appeal 032 of 2021) (2022) KEHC 7 (KLR)**, on the duty of a first appellate court to re-evaluate, reassess and reanalyse the extracts of the record and draw its own conclusions. **Respondent's Submissions** 1. The Respondent, through their counsel, filed written submissions dated 25th April 2025. The Respondent opposes the appeal in its entirety. 2. The Respondent submits, as a preliminary point, that the Appellant's written submissions are not in tandem with the Memorandum of Appeal. The Memorandum of Appeal, it is argued, challenges the Ruling of 5th June 2024 which dismissed the application to set aside the orders of 17th November 2022; however, the Appellant's submissions make the case for setting aside the Judgment of 26th April 2016 (entered after ex parte hearing). The Respondent argues that the submissions are therefore irrelevant and the appeal should be struck out for lack of prosecution. 3. The Respondent asserts that the Appellant was fully aware of all mention and hearing dates from as far back as 2014 but handled the matter in a relaxed manner for over six years. The Notice of Motion dated 10th November 2022 was not served upon the Respondent, raising the inference that the Appellant was seeking to move the court secretly. 4. The Respondent further submits that the Appellant has never denied owing the decretal sum and that the allegation that the proclaimed goods belong to the County Government of Kiambu is a bare allegation unsupported by any documentation. It notes that the Respondent's business was forced to close down or operate at limited capacity due to the Appellant's refusal and neglect to pay for the supplied goods, from which the Appellant profited. 5. The Respondent prays that the Memorandum of Appeal be dismissed with costs, relying on the following authorities: 1. Patel v. EA Cargo Handling Services Limited (1974) EA 75, on the court's discretion to set aside a default judgment. 2. Equity Bank v. West Link MBO Limited, Civil App No. 78 of 2011, on the duty of courts to balance competing rights within the confines of the law. 3. Shah v. Mbogo (1967) EA 116, on the broad discretionary power of the court. **Analysis And Determination** 1. Having considered the Memorandum of Appeal, the written submissions of both parties and the Record of Appeal, I find that the following issues would arise for determination: 1. Whether the Appellant's written submissions are properly before the court, and whether the appeal is discernible from the Memorandum of Appeal. 2. Whether the Learned Trial Magistrate erred in failing to exercise discretion judiciously, specifically by dismissing the application dated 18th November 2022. 3. What orders should issue. 1. The Respondent raises a preliminary point that the Appellant's written submissions relate to a different dispute, the setting aside of the judgment of 26th April 2016 rather than the ruling being appealed, which is the dismissal of the Notice of Motion dated 18th November 2022 by the ruling of 5th June 2024. 2. I have carefully perused both the Memorandum of Appeal and the Appellant's submissions. The Respondent is correct that the introductory section of the Appellant's submissions begins by recounting the orders made in the judgment of 26th April, 2016. However, a holistic reading of the submissions reveals that the Appellant does engage with the grounds in the Memorandum of Appeal. The thrust of the submissions is that the dismissal of the application to set aside and reinstate was unjust because Counsel was present in court but the matter was not on the cause list. 3. As this court exercises its appellate jurisdiction under Section 78 of the Civil Procedure Act, which mandates it to re-evaluate, reassess and reanalyse the evidence and draw its own conclusions, I am guided by the principle in **Bwire v. Wayo & Sailoki (Civil Appeal 032 of 2021) (2022) KEHC 7 (KLR)** that the court must arrive at its own independent judgment on whether or not to allow the appeal. The confusion in the Appellant's submissions is a procedural lapse that does not go to the root of the dispute. Courts exist to do justice. Deviation from procedure which do not occasion prejudice to the opposite party ought not be elevated to cloud the real issues for determination. I, accordingly decline to strike out the appeal on this ground alone. 4. As to whether the Trial Magistrate properly exercised her discretion in refusing to reinstate the application of 10th November 2022, which application sought to set aside the judgment of 26th April 2016, the principles governing such applications are well settled. In **Patel v. EA Cargo Handling Services Limited (1974) EA 75,** the Court of Appeal, adopting the opinion of **Harris J in Kimani v. McConnell (1966) EA 547,** stated as follows: ***In the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed.*** 1. In **Belinda Murai & 9 Others v. Amos Wainaina (1979) eKLR**, Madan JA cautioned that courts must not shut the door of justice on a party on account of a mistake made by counsel, noting: ***“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel... The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”*** 1. In the present case, the Record of Appeal discloses a series of undisputed facts that bear on the exercise of discretion: 2. The Appellant's advocate has deposed on oath that on 15th November 2022, he was present in court but did not find the application on the cause list. The court's own proceedings for 15th November 2022 record state**: "N/A at 9:35am. Court: The application dated 10/11/22 is dismissed for non-attendance and want of prosecution."** Presumably, the matter was called out and parties found absent. The Application was the dismissed. 3. The Appellant filed the second application (Notice of Motion dated 18th November 2022) within three days of learning of the dismissal. The Appellant promptly acted upon discovering the dismissal. 4. The Appellant has never denied that it owes the Respondent money for the supplied goods. The underlying dispute is a genuine commercial claim. 5. Against this, the Respondent urges that the Appellant had been absent from court proceedings from inception since the suit was filed in 2014 and that the current application is an afterthought, coming six years after judgment. These are weighty submissions. The Respondent has suffered genuine prejudice. Its business allegedly had to shut down or operate at limited capacity, and the decretal sum plus interest has grown substantially. 6. In **Gold Lida Limited v. Nic Bank Limited & 2 Others (2018) eKLR**, the Court observed: ***“The overriding objective of our constitutional and statutory framework on civil procedure is to achieve substantive justice to the litigants... This view is informed by Article 50 of the Constitution of Kenya which secures the right of a hearing before the court. This court is obligated to safeguard that right. In light of this, I am of the view that the inconvenience to be suffered by the defendants as a result of reinstatement of this suit can be adequately remedied through an award of costs.”*** 1. Whereas the above principle is true, the test in the instant case, requires the Applicant to demonstrate three things: 2. Reasonable explanation for non-attendance. 3. That he has an arguable case on the merits. 4. No prejudice to the other party that cannot be compensated by costs. 5. The Appellant Counsel explained that he was in court and did not hear the matter being called out. He has also stated that the matter was not in the day’s cause list. These assertions present a direct contradiction. The Counsel failed, (just like he did before the trial court) to annex the cause list for the day to demonstrate that the subject application was not cause listed, to support his allegations. The question that would arise is: if indeed the matter was not cause listed on the material day, why was Counsel present in court waiting for the matter to be called out? In my view Counsel has not sufficiently explained reasons for none attendance. On the contrary, the court records clearly indicate that the matter was called out and in the absence of the parties the Application was dismissed for none attendance 6. The other requirement is that the Applicant must demonstrate he has an arguable case on the merits. The court is fully aware that the Application that was dismissed was seeking to reinstate the suit. The Appellant has not denied that it owes the Respondent money for the supplied goods. If this is the position then what would be the purpose of reinstating the Application? 7. On whether the Respondent will suffer prejudice that cannot be compensated by costs, I note from the Ruling subject of this appeal that Judgment at the trial court was entered on 26th April 2016.The Appellant sought to reinstate the suit 6 years after Judgment was entered. The chronology of events indicates that the Respondent, fully aware of the suit was disinterested. Though severally served with notices to which he acknowledged receipt, he failed to appear in court including on the date the matter proceeded for hearing. This matter has been in court for close to 12 years. It is not sufficient that the Respondent can be compensated with costs. Litigation must come to an end, more so when a party who does not deny owing the other funds for supplied goods, has demonstrated laxity and indolence in defending the suit 8. Taking into account all the above, the record of appeal and the submissions by learned Counsel on record for the parties, I make a finding that the Learned Trial Magistrate properly exercise her discretion and judiciously so. In the circumstances, and noting the age of this matter and the chronology of events since filing, it is just and equitable to bring this litigation to an end. **Disposition** 1. The Ruling of the trial Magistrate delivered on 5th June, 2024, is hereby upheld. 2. In the upshot, I find that the appeal before this court lacks merit. The same is hereby dismissed with costs to the Respondent. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **SAUSI FOR THE RESPONDENT** **NO APPEARANCE FOR THE APPELLANT** **COURT ASSISTANT: JAEL NOSIM**