[2023] KEHC 26045 (KLR)

Imala v Kinyanjui (Civil Appeal E504 of 2022) [2023] KEHC 26045 (KLR) (Civ) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26045 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E504 of 2022

DAS Majanja, J

November 30, 2023

Between

Vincent Mate Imala

Appellant

and

Paul Gitonga Kinyanjui

Respondent

(Being an appeal from the Judgment and Decree of Hon. J. W. Munene, RM/Adjudicator dated 14th June 2022 at the Small Claims Court at Nairobi, Milimani in SCC Claim No. 402 of 2022)

Judgment

1. On 14. 06. 2023, the Subordinate Court struck out the Appellant’s claim against the Respondent for want of prosecution (“the Ruling”). The Appellant is aggrieved with the Ruling and has appealed to the court through its Memorandum of Appeal dated 06. 07. 2022. He prays that the court allow the appeal, set aside the Ruling and reinstate the claim for hearing before a different Adjudicator.

2. From the record, the Appellant filed the claim on 23. 02. 2022 seeking the sum of Kshs. 237,910. 00 from the Respondent being repair costs, assessment fees and investigation fees the Appellant claimed he incurred following an accident that occurred on 24. 02. 2019 between the parties’ motor vehicles.

3. On 22. 04. 2022, the court allowed the Appellant to amend his claim so as to replace the previous respondent with the Respondent herein as the Appellant discovered that the previous respondent had bought the motor vehicle after the accident. The court then directed that the Respondent was to be served before the close of business on the said 22. 04. 2022 and the matter was to be mentioned on 09. 05. 2022. On that day, the Respondent did not appear and in as much as the Appellant stated that he had served him on 22. 04. 2022, the court held thatthere was no certificate of service to prove service. The matter was adjourned for mention on 31. 05. 2022.

4. On 31. 05. 2022, the Respondent who was represented by counsel, requested for 3 days to file the notice of appointment and a response to the claim. The court acceded to the Respondent’s request and set down the matter for hearing on 14. 06. 2022. On the hearing date, the parties also informed the court that they were ready to resolve the matter amicably. The court denied the request to adjourn the matter further on account of its age and set it for hearing at 2. 30 pm on the same day during which time the parties were at liberty to record a consent. At 2. 30 pm, the Appellant’s counsel informed the Adjudicator there was no notice of appointment of advocates by the Respondent’s counsel on record and that he had not been served with any. He urged that the claim was not opposed and with regard to the affidavit of service dated 09. 05. 2022, he requested that judgement be entered in default of response in respect of the liquidated claim of Kshs. 237,910, plus costs and interest of the suit.

5. The Respondent’s counsel responded by stating that he failed to file his notice of appointment due to an oversight on his part and that he purported to act as the advocate for the Respondent on 31. 05. 2022 and on that day, 14. 06. 2022. He recalled that he informed the court that he was newly instructed and prayed for 3 days to respond to his notice of appointment and respond to the claim. He stated that he took up the matter as it appeared in his diary but could not explain why the matter was in his diary. That he took that day’s hearing date for the matter in his right mind save for the fact that he could not tell how the matter landed in his office diary. He concurred that when the matter was called out, the parties were negotiating the matter out of court and prayed for a day to record a consent. He added that he was still in his right mind but under false but erroneous impression that he had been given instructions in the matter until 14:52 PM when it dawned in him that he had no such instructions. He therefore urged the court to deal with the matter as if the Respondent was unrepresented.

6. The Adjudicator considered the matter. He called into question the advocates’ professional conduct and concluded that they had colluded. He went on to hold that the court could not enter judgment in default of response as the Respondent’s counsel, though properly instructed, did not find it within his legal duty to file his notice of appointment and that the Respondent, who is an innocent party did not know of his advocate’s negligent professional misconduct and could not be made liable thereof. The Adjudicator chided the Appellant’s advocate for choosing to collude with the Respondent’s advocate and held that if he had not been served with Notice of Appointment from 31. 05. 2022 he could have served the Respondent personally or informed the court when the matter was first called in the morning.

7. For these reasons, the Adjudicator concluded that the Appellant was not interested in prosecuting the matter since when it was filed. As such, he struck it out but with no order as to costs for want of prosecution. This Ruling forms the basis of this appeal. The Appellant filed written submissions. The Respondent did not participate in the appeal.

8. Even though the Appellant raises 13 grounds of appeal in its Memorandum of Appeal, the same ultimately call the court to determine whether the subordinate court erred in dismissing the Appellant’s suit against the Respondent for want of prosecution.

9. Under section 17 of the Small Claims Act, the subordinate court has control of its own procedure in the determination of claims before it and thus, it can be stated that the said court has discretionary power to dismiss a suit for want of prosecution (see Ivita v Kyumbu [1984] KLR 441 ).

10. The Adjudicator struck out the Appellant’s suit not because there was an inexcusable delay calling for dismissal for want of prosecution but because of what the Adjudicator considered to be the professional misconduct of both Advocates. He was of the view that the Appellant’s advocate was not interested in prosecuting the case since it was filed and that he had allegedly colluded with the Respondent’s counsel to frustrate the hearing of the suit on the day of the hearing.

11. While I agree with the learned Adjudicator’s displeasure as to the conduct of the parties’ advocates in the proceedings before him, it should not be lost that the Small Claims Court Act provides flexibility to the court so as to ultimately do justice to the parties as is the spirit of Article 159 of the Constitution. Even though the learned Adjudicator could have been keen on having the matter heard and determined within the 60-day statutory period, he had the right to impose any terms and conditions to ensure that the hearing could proceed within the time limited and the same could still have been heard and a decision rendered on its merits (See Rutere v Muigai [2023] KEHC 17345 (KLR)).

12. The Appellant’s advocate could not be blamed for the Respondent’s advocate’s failure to file a notice of appointment and a defence as had been directed. Further, this failure by the Respondent to file a response was reason enough for the subordinate court to enter default judgment as requested by the Appellant and provided for under section 27(1) of the Small Claims Court Act. In the alternative, the learned Adjudicator could have directed the Appellant to serve the Respondent directly and grant him such time to file his response and in default, then default judgment would issue.

13. It is for the above reasons that I find that the learned Adjudicator was clearly wrong in the exercise of his discretion which resulted in an injustice as the claim ought not to have been struck out for want of prosecution. The Appellant was denied a fair hearing based on the fault of the Respondent’s advocate. The Adjudicator failed to exercise his discretion judiciously within the spirit of the overriding objectives of the Small Claims Court Act and also the provisions of Article 159 of the Constitution.

14. I allow the appeal, set aside the ruling of the Subordinate Court dated 14. 06. 2022 and substituted with an order reinstating the suit. The matter shall be fixed for hearing within 14 days from the first mention before the Subordinate Court. If the Appellant is not ready for hearing on the day it is first fixed for hearing, it shall be dismissed. The suit shall be heard by a different Adjudicator other than Hon. J. W. Munene.

15. There shall be no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER 2023. D.S. MAJANJAJUDGE