[2023] KEHC 25211 (KLR)

Ingutia v Kenya Wildlife Services & another (Civil Appeal 359 of 2015) [2023] KEHC 25211 (KLR) (Civ) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25211 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 359 of 2015

AN Ongeri, J

November 10, 2023

Between

Alex Lotonde Ingutia

Appellant

and

Kenya Wildlife Services

1st Respondent

Daniel Kamau Kimemia

2nd Respondent

(Being an appeal from the ruling of Hon. M Chesang (RM) in Milimani CMCC No. 5180 of 2008 delivered on 29/6/2015)

Judgment

1. The trial court made a ruling on 29/6/2015 in the following terms;“Furthermore the delay in making the present application was inordinate. Having learnt of the dismissal way back in the year 2012, why did the plaintiff take a whole 2 years to seek the setting aside of the court orders? Once more, the plaintiff has failed to offer any reasonable explanation in answer to this question hence this court cannot exercise its jurisdiction in his favour as such would amount to an injudicious exercise of discretion”.

2. The appellant has appealed against the dismissal of his Application on the grounds that the Trial Magistrate erred in law and in fact in;a.Not appreciating the evidence adduced in support of the application for setting aside the decision dismissing the suit for want of prosecution;b.Not appreciating the supporting affidavit made on behalf of the Appellant;c.Failing to understand the issues for determination;d.Finding that there was no evidence explaining non-attendance of the Plaintiff;e.Failing to exercise discretion in allowing the Appellant’s application in the lower Court;f.Misinterpreted the Law on the subject matter; andg.The Appellant’s application in the Lower Court had merit.

3. The Appellant prayed that the ruling of the Honourable Resident Magistrate in Civil Case number 5180 of 2008, delivered on 29th June 2015 be set aside, the Application in the subordinate Court seeking orders to reinstate the suit be allowed and the present Appeal be allowed with costs.

4. The parties filed written submissions as follows;

5. The Appellant submitted that the lower court matter was instituted on 20th August 2008 and set down for hearing on 29th February 2012 on which day the Plaintiff failed to attend. The suit was dismissed for want of attendance of the Plaintiff on 29th February 2012 on application by the Respondent.

6. The Appellant then filed the application dated 16th May 2022 seeking the order dismissing the suit to be set aside, which application was dismissed on 29th June 2015.

7. The Appellant submitted that the reason for non-attendance of the Plaintiff on 29th February 2012 was explained by the Appellant and that he had tried to invite the Respondent to fix another hearing date by the letter dated 12th March 2012, demonstrating desire to have the matter heard.

8. The Appellant relied on the decision in the matter of Macharia -v- Macharia (1987) KLR 61, where the Court held that:“The Court has a very wide discretion to exercise under the relevant order and rule and there are no limits and restrictions on the discretion of the Judge except that if the judgement was varied it had to be done on terms that were just . . .to deny the subject hearing should be the last resort of the Court.

9. He submitted that the Court had a wide discretion to set aside exparte orders and that the concern of the Court should be to do justice to the parties where there’s a triable case, and hear the matter on merit. He averred that the trial Magistrate improperly exercised her discretion and arrived at a wrongful decision of dismissing the matter, and urged this court to set aside that decision.

10. The Respondent submitted that the Appellant’s submissions avoided to address the grounds of Appeal and had failed to demonstrate how the lower court had erred in law and fact in arriving at its decision.

11. The Respondent further submitted that after the suit in the lower Court was dismissed in 2012, the Appellant had taken a further two years to apply for the orders to be set aside, with no reasonable explanation for the delay.

12. Further, that after inviting the Respondent to set the matter down for hearing, the Appellant had not proceeded to get a hearing date, and even if they did, the matter had already been dismissed.

13. The Respondent also submitted that the cause of action arose in the year 2008, more than 15 years ago, and the defense was unlikely to procure any witness to testify. It would thus occasion great injustice to re-open the proceedings for a matter that the Defendants had rightfully considered closed.

14. The Respondent relied on the finding in the matter of Mbogo & Anor -v- Shah (1968) EA 93 and Pithon Waweru Maina -v- Thuku Mugiria (1983) KLR 78 where the court held:“The Principles Governing the exercise of Judicial Discretion to set aside an exparte judgment obtained in default of either party to attend the hearing are:i.There are no limits on the Judge’s discretion except that it be based on such terms as are just;ii.The discretion has to be exercised to avoid injustice or hardship resulting from accident, misadventure, excusable mistake or error, but not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice;iii.Discretionary power should be exercised judicially and not arbitrarily or idiosyncratically.

15. The Respondent contended that it is a tenet of the law that litigation must come to an end and that the present appeal lacked merit, and urged this court to dismiss it with costs to the Respondents.

16. The sole issue for determination is whether the trial court ought to have allowed the application setting aside the dismissal of the suit.

17. I find that although this court has a discretion to allow an application to set aside an order dismissing a suit, the said discretion ought to be exercised judiciously.

18. In the matter of Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another [2018] eKLR the Court, while echoing the decision in Shah vs. Mbogo & Another (1967) EA 116 stated on the matter of discretion as follows:“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”

19. This position is fortified in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR, where the Court of Appeal stated:“We agree with those noble principles which go further to establish that the court's discretion to set aside an exparte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel's failure to diarize the date properly or was it meant to deliberately delay the cause of justice. “

20. I have perused the record and I find that the plaintiff was consisted in court attendances prior to the dismissal of the suit.

21. It is evident from the record that on some occasions, the Plaintiff was ready to proceed but the hearing could not be reached.

22. The 1st Defendant is a Statutory body corporate with perpetual succession.

23. The respondent cannot suffer prejudice that cannot be compensated by an award of costs.

24. In the case of Sebel District Administration v Gasyali {1968} EA 300, 301 – 302 , the court stated the factors to guide the court in the exercise of its discretion as follows;“The nature of the action should be considered, the defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered, and finally, I think it should always be remembered that to deny the subject a hearing should be the last resort of a court.”

25. The Applicant in this case was the plaintiff who was injured in traffic accident.

26. It is in the interest of justice that the plaintiff be granted a chance to prosecute his case.

27. I allow the appeal in the following terms;

i. THAT the order dismissing the application dated 16/5/2015 be and is hereby set aside and substituted with an order allowing the application.ii. THAT the appellant’s suit be and is hereby reinstated for hearing.iii. THAT the same to be fully prosecuted within 90 days of this date.assessed at ksh.20,000 before the suit is set down for hearing.v. THAT the applicant is to bear the costs of this appeal.Orders to issue accordingly.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ...................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent