[2013] KECA 219 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(CORAM: VISRAM, KOOME & ODEK, JJ.A)

CIVIL APPEAL NO. 295 OF 2009

BETWEEN

HARRISON WANJOHI WAMBUGU..................................................... APPELLANT

AND

FELISTA WAIRIMU CHEGE...................................................... 1ST RESPONDENT

PETER CHEGE NJAU........................................................ 2ND RESPONDENT

(An appeal from the ruling of the High Court of Kenya at Nyeri (Makhandia, J.)

dated 8th July, 2008

in

H.C.C.A NO. 67 OF 2006)

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JUDGMENT OF THE COURT

This is an appeal against the ruling of the High Court (Makhandia, J. as he then was) dated 8th July, 2006 wherein the court declined to reinstate the appellant's appeal which had been dismissed for non attendance by the appellant.

The background to this appeal is that in the year 1997, the respondents who are wife and husband respectively leased out three separate rooms situated on their property described as Plot No. 912 Ziwani Estate Nyahururu to the appellant. The appellant claimed that he used to operate a shop in one of the rooms. Thereafter, according to him a dispute arose between the parties when the respondents increased the rent payable. The appellant filed a suit in the Business Premises Tribunal at Nyahururu being Tribunal Case No. 13 & 15 of 1997 wherein the respondents were restrained by the tribunal from evicting the appellant from the suit premises.

The appellant alleged that on 31st August, 1997 the respondents forcefully broke into the shop, damaged his stock and household items worth Kshs. 188, 569. 40/= and physically assaulted him causing him bodily harm. The appellant also alleged that the respondents made a malicious report to the police that the appellant had sent thieves to attack them; and as a result of the false report the appellant was arrested and detained for four days. Thereafter, on 4th September, 2000 the appellant filed suit in the Chief Magistrate's Court at Nakuru seeking inter aliageneral and special damages for the property damaged and for personal injuries he sustained from the alleged assault by the respondents. The suit was subsequently transferred to the Senior Principal Magistrate's Court at Nyahururu.

The respondents filed a joint statement of Defence and Counter Claim. The respondents denied breaking into the appellant's house and physically assaulting him. They claimed that they leased three rooms to the appellant who used the same as residential. They claimed that one of the rooms was a shop but the appellant used the same as a store and did not operate a shop therein. Vide their Counter Claim the respondents claimed for costs that were awarded in their favour against the appellant in various cases that had been instituted in court between the parties herein.

The trial court after hearing the evidence of the parties in its judgment dated 17th August, 2006 dismissed both the appellant's suit and the respondents' Counter Claim for lack of evidence. Being aggrieved by the said decision the appellant filed an appeal in the High Court and the same was admitted for hearing. On 5th May, 2008 the High Court (Makhandia, J.) dismissed the appellant's appeal for non attendance.

Subsequently, on 7th May, 2008 the appellant filed an application seeking inter aliareinstatement of his appeal which had been dismissed. The ground upon which the appellant relied on in support of his application is that he failed to attend the hearing of the appeal on 5th May, 2008 because he had erroneously confused the date for the hearing as 6th May, 2008 as opposed to 5th May, 2008. According to him the confusion was as a result of the court's registry staff informing him that the appeal was scheduled for hearing on 6th May, 2005.

The respondents opposed the said application and contended that the appellant was present when the appeal was fixed for hearing on 5th May, 2008; and that he also endorsed his signature against the said date on the court's record. They maintained that the appellant was aware of the hearing date of the appeal and that further they were informed by the registry staff that the hearing was scheduled for 5th May, 2008.

The High Court (Makhandia, J.) in his ruling dated 8th July, 2008 dismissed the application on the grounds that the appellant was not candid with the truth; that the appellant was present when the appeal was fixed for hearing on the 5th May, 2008; and that he endorsed his signature on the date fixed for hearing the appeal. It is against that decision that the appellant has filed this current appeal based on the following grounds:-

The learned Judge erred in law and facts in refusing to set aside the ruling he made on 5th May, 2008 by failing to consider that:-

a) If the appellant had intentionally failed to attend court on 5th May, 2008 he would not have come to court on 6th May, 2008 as he had heard.

b) After the appellant learned on 6th May, 2008 that the ruling was delivered ex-parte on 5th May, 2008 he on 7th May, 2008 applied for the ex-parte ruling to be set aside. Sic

c) If the appellant's appeal was not arguable the learned Judge would not have admitted it for hearing on 27th June, 2007.

The learned Judge erred in law and in facts in failing to consider that his refusal to set aside his ruling dated 5th May, 2008 supported the Principal Magistrate's Court judgment which dismissed both the appellant's Plaint and the respondents Counter Claim contrary to the rule of law. Sic

All parties herein appeared before us in person and argued the appeal. The appellant submitted he was the respondents’ tenant and had rented three rooms one of which he operated a shop. He stated that he filed the suit in the subordinate court because the respondents damaged his property and physically assaulted him causing him bodily harm in the year 1997. He argued that the respondents made a false report to the police that he was a thief thereby causing his arrest and detention for four days in police custody. He was subsequently charged and acquitted of the alleged offence. He submitted that his suit was dismissed in the lower court hence he filed an appeal in the High Court; and that the appeal in the High Court was dismissed for non attendance. He explained that his failure to attend the hearing of the appeal in the High Court was due to the fact that he had inadvertently confused the hearing date fixed as 6th May, 2008 as opposed to 5th May, 2008.

The respondents in opposition to the appeal submitted that the appellant never ran a shop in the rooms they had leased out to him; and that this fact was confirmed by the inspector of the Business Premises Rent Tribunal when he visited the suit premises. They also submitted that they never made a false report to the police as alleged by the appellant; that it was in fact the appellant who had organised for robbers to attack the respondents who raised an alarm and neighbours rescued them and in the process, the neighbours administered mob justice upon him.

We have considered the grounds of appeal, the Record of Appeal, submissions of the parties and the law. The issue that is before us is whether the learned Judge (Makhandia, J.) erred in declining to reinstate the appellant's appeal which had been dismissed for non attendance. We take note that the learned Judge in declining to reinstate the appeal exercised his discretionary jurisdiction. Therefore, before we can interfere with the learned Judge’s discretion we must be satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or, that he misapprehended the law or failed to take into account some relevant matter. In Mbogo & Another- vs- Shah (1968) E.A. 93at page 95, Sir Charles Newbold P. held,

“…..a Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjuctice….”

The appellant's appeal was dismissed by the High Court for non attendance under Order XLI rule 14of the former Civil Procedure Rules. Order XLI rule 16of the former Civil Procedure Rulesprovided:-

“where an appeal is dismissed under rule 14, the appellant may apply to the court to which such appeal is preferred for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, thecourt shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.”

In Richard Nchapi Leiyagu -vs- IEBC & 2 others- Civil Appeal No. 18 of 2013,this Court expressed itself as follows:-

“We agree with the noble principles which go further to establish that the court's discretion to set aside an ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.”

Therefore, we have to ask ourselves whether the failure to attend court by the appellant on the 5th of May, 2008 constituted an excusable mistake or was it meant to deliberately delay the cause of justice. The appellant contended that he failed to attend the hearing of the appeal because he erroneously confused the date of the hearing as 6th May, 2008 as opposed to 5th May, 2008; and that upon realising that the appeal had been dismissed when he attended court on 6th May, 2008 he filed an application on 7th May, 2008 seeking re-instatement of the appeal.

In Belinda Murai & others -vs- Amoi Wainaina(1978) LLR 2782 (CALL),Madan J.A described what constitutes a mistake in the following words:-

“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel the court may feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better. The court may not condone it bit it ought to certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometime overrule..”

The respondents argued that the appellant was aware of the hearing date of the appeal having endorsed his signature against the said date on the record of appeal and therefore, the reason given for his non attendance was not candid. We are of the considered view that the appellant's reason for not attending the hearing of the appeal was excusable. This is because we are inclined to give the appellant the benefit of doubt that he erroneously confused the hearing date to be 6th May, 2008 as opposed to 5th May, 2008. More so because after the appellant learned on 6th May, 2008 that his appeal had been dismissed he filed an application for reinstatement of the appeal on 7th May, 2008. In Philip Chemowolo & another -vs- Augustine Kubede (1982-88)KAR 103 at 1040Apaloo, J.A (as he then was) held,

“Blunder will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of parties and not the purpose of imposing discipline.”

In this case, the inconvenience caused to the respondents by the non attendance of the appellant could have been compensated by costs.

In Richard Nchapi Leiyagu -vs- IEBC & 2 others (supra), this Court expressed itself as follows:-

“The right to a hearing has always been a well protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.”

We are of the considered view that the learned Judge ought to have reinstated the appellant's appeal to give the parties herein an opportunity to be heard on the same and for the appeal to be determined on merit.

From the foregoing we find that the learned Judge misdirected himself in exercising his discretion by declining to re-instate the appellant's appeal and by extension denying the appellant a hearing. Accordingly, we allow the appeal herein, set aside the ruling dated 8th July, 2008 and substitute thereto with an order allowing the appellant's application for reinstatement of the appellant's appeal in the High Court. We further direct that the appeal in the High Court be heard on its merits. We however award costs to the respondents for the application for reinstatement of the appeal dated 7th May, 2008 in the High Court. Costs of this appeal to abide by the outcome of the appeal in the High Court.

Dated and delivered at Nyeri this 10th day of October, 2013.

ALNASHIR VISRAM

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JUDGE OF APPEAL

M. K. KOOME

.................................................

JUDGE OF APPEAL

J. OTIENO – ODEK

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JUDGE OF APPEAL

I certify that this is a true copy to the original.

DEPUTY REGISTRAR