[2019] KEHC 10070 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 130 OF 2016

(Consolidated with 131 of 2016 and 120 of 2016)

GERITA NASIPONDI BUKUNYA....................1ST PETITIONER

SOFIA NAFULA MATUMBAI.........................2ND PETITIONER

PETER KITUYI KHAEMBA............................3RD PETITIONER

VERSUS

ATTORNEY GENERAL.........................................RESPONDENT

RULING

1. This is a Notice of Motion dated 2nd May 2018, brought under sections 1A, 1B, 3A and 63 of the Civil Procedure Act, and Order 10 rules 8 and 11 and Order 22 rule 22 of the Civil Procedure Rules, 2010. The Attorney General, the applicant, has sought an order setting aside the judgment delivered on 20th February 2018.

2. The grounds upon which the application is based are that the judgment is for a substantial amount which to be paid by the public and is therefore a significant public interest element; that the respondent did not file a defence because they were never served with the hearing notice and that they did not know when the case was coming up for hearings. It is contended that the respondent became aware of the judgment on 19th March 2018 when the petitioner’s Advocate forwarded to them a copy of the draft decree.

3. The applicant contended that they have a right to be heard and defend the claim and that they have a strong defence which raises triable issues. It is their case that the petitioner/respondent will not suffer any loss that cannot be compensated by way of costs.

4. In the supporting affidavit, Lydia Ndirangu deposed that the respondent entered appearance and filed grounds of opposition to the petition on 10th May 2016 and that the court gave a mention date for 28th June 2017 when the three petitions were consolidated, namely;Petition Nos. 120 of 2016, 130 of 2016 and 131 of 2016.

5. According Miss Ndirangu, the respondent allowed time to file responses, and a further mention was set for 27th June 2017 when the respondent indicated that they were yet to receive instructions and sought more time to file a replying affidavit. She stated that they were given a further 14 days to file and serve their replying affidavit and submissions and a mention was again set for 28th November 2017, a date the respondent was not aware of.

6. She stated that a hearing date was then set for 22nd January 2018 but the date was not communicated to the applicant; that the court scheduled the judgment for 18th April 2018, but again the judgment was delivered on 20th February.

7. The respondent filed a replying affidavit by James H, Gitau Mwaro, the petitioner/respondent’s advocate sworn on 23rd May 2018. He deposed that the applicant’s assertions are not borne by the records. According to Mr Mwaro, the applicant’s counsel, Mr Sekwe, was present in court on 5th February 2018 and the respondent was given 14 days to file responses and written submissions. He stated that the court directed that if the respondent did not file the responses and written submissions, it would proceed to write the judgment.

8. He deposed that the respondent failed to comply with the directions and the judgment was delivered on 20th February 2018. He contended that the respondent did not file responses between 28th June 2017, and 22nd January 2018 even after they had been given several opportunities. It is the respondent’s case that directions had been given on 28th June 2017 by consent that the consolidated petitions be disposed of by way of written submissions and parties agreed to file response, as well as submissions.

9. Mr Mwaro further stated that on 27th September 2017, the respondent’s counsel Mr Siro was in court when they were given a chance to file their responses and submissions and the matter was set down for further directions on 22nd January 2018 and a notice was serve on the respondent but there was no appearance. That notwithstanding, the court gave another mention date for 5th February 2018 and the judgment was eventually delivered on 20th February 2018.

10. During the hearing of the application, Miss Ndirangu, learned counsel for the applicant, urged the court to allow the application and set aside the judgment. Learned counsel more or less reiterated the grounds on the face of the motion and those in her supporting affidavit contending that they were neither aware of the hearing date nor were they served with a hearing notice.

11. Mr Gitau, learned counsel for the respondents opposed the application submitting that the prayers on the application are defective because the judgment sought to be set aside did not exists making the application untenable. He contended that the respondent had filed grounds of opposition to the petitions was fully aware of the petition as well as the hearing dates.

12. According to Mr. Gitau, on 5th February 2018 the respondent’s counsel was in court and was given time to file submissions which they did not do, This he contended, was one of the many occasions the respondent had been given an opportunity to file a replying affidavit and submissions but did not do so. He therefore urged the court to dismiss the application.

13. I have considered the application and response thereto. I have also considered submissions by counsel for the parties. The applicant’s grounds for seeking to set aside the judgment that they were not aware of the hearing date and for that reason they did not file a defence to the consolidated petitions.

14. The petitioner/respondent contended that the applicant was aware of the hearing dates and was given sufficient opportunities to file their response and submissions which they did not do. According to the petitioner, the respondent filed grounds of opposition but did not file written submissions despite the fact that directions to that effect were taken by consent that the consolidated petitions be disposed of by way of affidavits and written submissions. It was also stated that the respondent was served with mention notice but did not attend court and file their submissions.

15. The applicant has approached this court under sections 1A, 1B, 3A and 63 of the Civil Procedure Act, and Order 10 rules 8 and 11 and Order 22 rule 22 of the Civil Procedure Rules, 2010, asking the court to set aside the judgment delivered on 20th February 2018. The reasons given to justify the order sought are that the applicant was not served with the hearing notice hence was not aware of the hearing date.

16. The applicant has sought this court’s discretion in his favour. Indeed the court has wide discretion to set aside its judgment on various grounds, chiefly to ensure the ends of justice. However, like any discretion, the court should exercise this discretion judicially and only in deserving cases. There are many authorities on this point.

17. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another[2016] eKLR, the Court of Appeal observed that in a regular default judgment, where the defendant was duly served with summons to enter appearance, but for one reason or another failed to enter appearance or file defence, resulting in default judgment, such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and leave to defend the suit. The Court held that;

“In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among others”

18. The court is given the unfettered discretion to set aside its judgment in order to do justice to parties before it where circumstances permit since the primary duty of the court is to dispense justice to all by giving all parties an opportunity to be heard when applying the rules of procedure. It is in that regard that The Supreme Court of India stated in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711 that:

“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”

19. The applicant has applied to set aside the judgment not because they did not file a defence, but primarily that they did not attend the hearing for the reason that they were not served with the hearing notice and were, therefore, unaware of the hearing date. The respondents have countered this through their replying affidavit stating that the applicant office was well aware of every date the matter came up either for directions or what steps parties were required to take.

20. The applicant’s assertions are not supported by the record. This is because on 28th June 2017, parties appeared before the court and consolidated the three petitions by consent. They also agreed to dispose of the consolidated petitions by way of affidavits and written submissions. This was to be done within 14 days and the matter was set for mention on 27th September 2017. On that day, Mr Siro was present for the respondent. The petitioners had filed their submissions but Mr Siro asked for time to file submissions and the respondent was given 14 days to do so. The matter was again set down for mention on 18th January 2017. Nothing happened on that day. A date was taken for 22nd January 2018 when only the petitioners’ counsel attended. An affidavit of service sworn on 11th January 2018 and filed on 18th January 2018, showed that a Mention Notice was served on the applicant on 11th January 2018 and duly received at 2. 30 in the afternoon of the same day

21. The court observed that the applicant had not complied with the directions and gave another mention date for 5th February 2018. On that day, 5th February 2018, Mr Sekwe was present on behalf of the respondent. The court gave a date for judgment but still gave the respondent 14 days to file submissions and, in default, the court indicated that it would proceed to write the judgment. The judgment was delivered on 20th February 2018 which was more than the 14 days the applicant had been given to file submissions and as of that date, the respondent had not filed submissions. Even to date there are no submissions in record.

22. On the basis of what is borne by the record, the applicant has not been candid to the court. While the applicant contends that they were not aware of the hearing date for the reason that they were not served, the record tells a completely different story. The applicant was given not less than three occasions of 14 days each to file a replying affidavit and submissions. They were also aware that the petitions had been consolidated which was done by consent of both counsel. It is also true that on the day the court set the date for judgment, the applicant’s counsel was present in court and knew that they had 14 days to file their submissions but never complied. It is therefore clear to me that the applicant has not justified the request for the court’s exercise of discretion in their favour.

23. The law is now clear that the discretion of the court is not intended to assist a party who had deliberately sought to obstruct or delay the course of justice. (See Mbogoh & another v. Shah[1968] EA 93 and Price & Another v Hilder[1986] KLR 95. Furthermore rule 3(6) of the Mutunga Rules requires parties to proceedings before the court and their advocates to assist the court in furthering the overriding objectives by participating in the processes of the court and comply with its orders and directions.

24. Here is an applicant who has fully participated in the proceedings and even filed grounds of opposition to the consolidated petitioners. He was given time to file submissions but did not do so. Under those circumstances, even if the amount of the decree will be paid from public coffers, the applicant’s conduct does not deserve the court’s exercise of discretion, having failed to comply with the court’s directions.

25. The petitioners have a regular judgment which was lawfully obtained. To my mind, there is no justification to drive them from the seat justice and deny them enjoyment of the fruits of that judgment. Consequently, the application dated 2nd May 2018 is declined and dismissed with costs.

Dated Signed and Delivered at Nairobi this 1st Day of February 2019

E C MWITA

JUDGE