[2017] KEHC 700 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL APPEAL NO.31 OF 2011

JOHN KIPRONO CHUMO.....................................APPELLANT

VERSUS

PHILIP KIPNGENO LANGAT............................RESPONDENT

JUDGMENT

In this appeal, the appellant (formerly defendant) has appealed to this court against the Ruling of the Principal Magistrate in Sotik PMCC No 70 of 2010. In his ruling delivered on 4th August 2011 the learned trial magistrate dismissed the appellant’s application to set aside an ex- parte judgment in which he had made an order of specific performance in favour of the Respondent (formerly plaintiff). The claim before the court was in relation to an agreement for sale of land parcel number Kericho/Sotik Township/289 dated 28th November 2008. The respondent claimed that he paid the purchase price but the appellant refused to transfer the suit land to him.

When the matter came up for hearing before Hon. Rotich, the respondent was present but the appellant and his advocate were absent. The case proceeded for hearing in the absence of the appellant and judgment was entered in favour of the respondent. The appellant then applied for stay of execution and setting aside of the ex- parte judgment but his application was dismissed. Being dissatisfied with the said ruling, the appellant filed this appeal. The grounds of appeal are stated as follows:

1) The trial magistrate without prejudice overlooked the fact that the Respondent did not tender proof of full payment of the consideration.

2) The trial magistrate did not apply his judicial discretion in a fair manner by failing to order the setting aside of the ex-parte judgment.

3) The learned magistrate erred in failing to consider that land is an emotive issue therefore he could have accorded both parties a fair hearing.

4) The learned trial magistrate erred in awarding specific performance of which the court had no jurisdiction to do.

5) The trial magistrate further erred in law and fact by failing to consider the appellants defence on record.

Both parties filed their submissions in which they articulated their respective positions. The first and fourth grounds of appeal go to the merit of the judgment that was entered in favour of the respondent yet the appeal is purely in relation to the application to set aside the ex parte judgment. At this stage the court is not called upon to look at the merits of the case and for this reason, these two grounds fail.

The second and fifth grounds go to the crux of this appeal as they touch on the court’s role in dealing with applications to set aside ex-parte judgments. The principles of setting aside ex-parte judgments have been enunciated in several leading authorities. In the case ofPatel V East Africa Cargo Handling Services Ltd (

1974) EA 75 Sir Duffus stated as follows:

“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgment as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on the merits does not mean in my view, a defence that must succeed. It means as Sheridan J put it “a triable issue” that is, an issue which raises a prima facie defence and which should go to trial for adjudication”

The court’s unfettered discretion to set aside ex-parte judgments was also elaborated in the case of Pithon Waweru Maina V Thuku Mugira (1983) eKLR. The principles governing setting aside of ex-parte judgments obtained in the absence of an appearance or defence by the defendant or upon failure by the defendant to attend the hearing were stated as follows:

a) Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just.

b) Secondly, this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but it is not designed to assist the person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the course of justice. As stated inShah V Mbogo (1967) EA 116 at 123 and Shabir Din V Ram Parkash Anand (1955) 22 EACA 48

c) Thirdly, the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge 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 as a result there has been injustice.

d) Additionally, the court has no discretion where it appears there has been no proper service (Kanji Naram V Velji Ramji (1954) 21EACA 20

e)It is also important to note that a discretionary power should be exercised judicially and in a selective and discriminatory manner not arbitrarily and idiosyncratically Smith V Middleton (1972) SC 30

Applying the above principles to the instant appeal, it is necessary to find out whether there are valid reasons for the appellant’s failure to attend court on the hearing date. In his application to set aside the ex-parte judgment the appellant stated that he was not aware of the hearing date and that he only learnt that the matter was pending for judgment when he happened to pass by the registry on 13th May 2011 and inquired about the case. He also states that he has a good defence.

The court record shows that there is an Affidavit of service filed in court on 22nd September 2010 indicating that the appellant’s former advocates J.K Kirui & Co Advocates were served with the Hearing Notice for the 30th September 2010. It is not clear if the appellant was informed of the hearing date by his former advocates as both of them were absent on the hearing date. In the absence of any explanation from the appellant’s former advocates, I am inclined to believe that the appellant was not aware of the hearing date. In any event it is trite law that the mistake of an advocate should not be visited on his client. It is interesting to note that the trial magistrate made no findings with regard to service even after the appellant raised the issue in his affidavit in support of the application to set aside the judgment.

Regarding the fifth ground of appeal on the question as to whether the appellant has a good defence, the trial magistrate simply stated that the appellant had no reasonable defence without giving any reasons. I have looked at the Defence and I note that the appellant raises two fundamental issues. First he states that consent of the Land Control Board was not obtained within the requisite period of six months after the agreement was made. The appellant has also stated that the respondent only made a deposit of Kshs. 80,000 out of the agreed purchase price of Kshs. 280,000 after which no further payments were made. These are important points of fact or triable issues which can only be proved if the matter goes to full hearing. Had the trial magistrate taken this into consideration, he would have exercised his discretion in favour of the appellant by setting aside the ex-parte judgment. I therefore find and hold that to the extent that he failed to do so, he erred.

In his third ground of appeal the appellant has alluded to the fact that this being a land matter the trial magistrate should have accorded both parties a fair hearing. I agree with learned counsel that the right to a fair hearing is one of the fundamental rights enshrined in Article 50 of the Constitution of Kenya. Whereas this right should be available to everyone who seeks to have their disputes resolved within the justice system, I take judicial notice of the emotive nature of land matters in Kenya.

My analysis of the facts and the law lead me to the conclusion that the trial magistrate did not exercise his discretion judicially. I therefore allow the appeal and set aside the judgment entered in favour of the respondent together with all consequential orders thereto. I substitute it with an order that the suit be set down for hearing after compliance with order 11 of the Civil Procedure Rules. The respondent shall bear the costs of this appeal.

Dated, signed and delivered at Kericho this 3rd day of November 2017

J.M ONYANGO

JUDGE

In the Presence of:

Miss Ngetich for Mutai J.K. for the respondent

No appearance for the Appellant