[2013] KEHC 304 (KLR)

NO.140

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

E & L CIVIL APPEAL NO. 17 OF 2010

JOHN RAPEMO OBALA………..………………….………….…...APPELLANT

VERSUS

CHARLES OBONYO OBALA………………………………1ST RESPONDENT

MESHACK OPIYO OBALA…………………..…………… 2ND RESPONDENT

JUDGMENT

(Appeal from original Ruling and order made by S.M.Shitubi, Senior Principal Magistrate in

Migori, SPMCC No.1124 of 1999 on 19th January, 2010)

Introduction:

The appellant and the respondents are brothers. They are the sons on one, Obala Oneya (hereinafter referred to as “Obala” where the context so permits). The 1st respondent filed a suit in the High Court of Kenya at Kisii on 16th June, 1997 namely, Kisii High Court Civil Case No. 259 of 1997 against the appellant seeking among others, a declaration that the 1st respondent was entitled to exclusive ownership of land parcel number LR. No. Kamagambo/ Kameji/ 351 (hereinafter referred to as “the suit property”), a permanent injunction to restrain the appellant herein from trespassing onto or interfering in any manner whatsoever with the suit property and general damages for trespass. The 1st respondent’s claim against the appellant was that the suit property was at all material times registered in the name of Obala who had allocated the same to the 1st respondent during his lifetime and that upon the death of Obala on 23rd January, 1996, the appellant started trespassing onto the same. On 2nd November, 1999, the Kisii High Court Civil Case No. 259 of 1997 was transferred to the Senior Principal Magistrate’s Court at Migori for hearing and disposal. The case was assigned Migori SPMCC No. 1124 of 1999(hereinafter referred to as “the lower court case”). This appeal is from the decision that was made in this lower court case. On 10th January, 2002, the 1st respondent was granted leave to amend his plaint. I have not had sight of the 1st respondent’s amended Plaint on record but it seems from the amended plaint filed by the 2nd respondent on 21st May, 2002 that by his amended plaint, the 1st respondent had added a prayer for the rectification of the register of the suit property. On 23rd March, 2002, the 2nd respondent was granted leave to join the lower court case as 2nd defendant following which leave; the 2nd respondent filed an amended plaint on 21st May, 2002 as aforesaid. In his amended plaint, the 2nd respondent sought a declaration that he was entitled to exclusive ownership of a ¼ share of the suit property, a permanent injunction to restrain the appellant from trespassing into his said ¼ share, rectification of the register of the suit property and general damages for trespass. The 2nd respondent claimed that Obala had divided the suit property equally among his sons and that the 2nd respondent had enjoyed exclusive possession of his share of the suit property until the death of Obala on 23rd January, 1996 when the appellant trespassed on the same and fraudulently caused himself to be registered as the exclusive owner of the suit property thereby disinheriting the 2nd respondent. The 1st respondent’s case in the lower court was heard and finalized on 12th September, 2002. The 2nd respondent’s case was heard 12th September, 2002 and the same was finalized on 31st October, 2002. On that day, the appellant’s advocate prayed for adjournment. Thereafter, the hearing of the appellant’s case in the lower court was adjourned on several occasions for various reasons some attributed to the appellant and some not until 28th July, 2005 when the appellant was granted the last adjournment. On 11th October, 2005, the case was listed for the hearing of the appellant’s case on 22nd March, 2006. On 23rd March, 2006 when the matter came up for hearing, the appellant and his advocate did not turn up in court. The court was informed that the appellant’s advocates had been notified of the hearing date. Since the matter was coming up for the hearing of the appellant’s case and neither appellant nor his advocate was present, the lower court was requested to close the defence case and to proceed to deliver judgment on the matter. The lower court closed the appellant’s case and listed the matter for judgment on 25th April, 2006. On 26th April, 2006, the judgment was not ready. The same was ultimately delivered on 6th June, 2006. In his judgment, Ezra O. Awino, PM held that the suit property was transferred to the appellant after the death of Obala who was the registered owner thereof and after unlawful removal of a restriction that had been placed on the title by the 1st respondent. The court ordered the rectification of the register of the suit property by the cancellation of the registration of the appellant as the proprietor of the suit property and the restoration of the name of Obala as the proprietor thereof. By an application filed on or about 8th July, 2009 after a lapse of three (3) years from the date of the said judgment, the appellant moved the lower court for an order that the said judgment be set aside together the decree that arose therefrom and all consequential orders. The appellant also sought an order that his statement of defence be reinstated and the case set down for hearing inter partes. The appellant’s application was brought on the ground that the hearing of the lower court case had proceeded ex parte due to the failure of the appellant’s advocate to appear in court. The appellant contended further that the appellant had a good defence to the respondents claim and that if the said judgment was not set aside, he would suffer prejudice as a result of a fault which was not of his own making. The appellants application was heard before, S.M.Shitubi, SPM who in a ruling delivered on 19th January, 2010 dismissed the same with costs. The leaned senior principal magistrate held that the appellant had been given sufficient time in the lower court to present his defence but failed to do so. The learned magistrate also held that the application had been brought after unreasonable delay and as such the appellant was guilty of laches and did not deserve the exercise of the court’s discretion. The learned magistrate also held that the appellant’s advocate who had brought the application for the setting a side of the judgment of 6th June, 2006 was not properly on record as he had not obtained leave of the court to come on record as required under the then Order III Rule 9A of the Civil Procedure Rules.

The appeal before this court;

It is against that ruling of S.M.Shitubi,SPM delivered on 19th January, 2010 that this appeal has been preferred. The appellant has put forward four (4) grounds of appeal namely;

The learned trial magistrate erred in law and in fact in failing to hold that the appellant had the right to be heard in his defence;

The learned trial magistrate erred in law and in fact by disregarding in her ruling the appellant’sprayer to present documents for consideration of the court;

The learned trial magistrate erred in law and in fact by failing to hold that the appellant’s previous advocate’s mistake ought not to have been visited upon the appellant;

The learned trial magistrate erred in law and in fact by failing to appreciate that failure to produce material documentary evidence may lead to miscarriage of justice.

On 26th November, 2012, the court directed that the appeal be heard by way of written submissions. The appellant filed his submissions on 7th January, 2013, the 1st respondent on 15th May, 2013 and the 2nd respondent on 20th May, 2013. I have considered the ruling and/or decision of the learned senior principal magistrate, the appellant’s grounds of appeal and the written submissions filed herein by the appellant. I have also considered the written submissions by respondents. The appellant’s application before the lower court called for the exercise of the court’s discretion. In the case of, Mbogo and another vs. Shah [1968] E.A 93,it was held that an appellate court should not interfere with the exercise of the discretion of a lower court unless it is satisfied that the lower court misdirected itself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the lower court was clearly wrong in the exercise of its discretion and as a result there has been a misjustice. I am not persuaded by the appellant that the learned senior principal magistrate misdirected herself in any matter that was raised before her or that she exercised her discretion wrongly thereby causing a miscarriage of justice. The learned magistrate considered the conduct of the appellant in the lower court before and after the judgment that was sought to be set aside and concluded that the appellant did not deserve the exercise of the court’s discretion. The conduct of the appellant in the lower court before and after the judgment that was made on 6th June, 2006 was a relevant factor in the determination of the application that was before the learned magistrate. The learned magistrate’s finding that the appellant’s failure to present his defence before the lower court for a period of over two (2) years after the respondent’s had closed their respective cases and the filing of an application to set a side judgment entered in default of that defence three (3) years after the date of that judgment was an indication of indolence that did not deserve the exercise of the court’s discretion in my view cannot be faulted. The learned magistrate was right in holding that the respondents were entitled to enjoy fruits of their judgment. In other words, the learned magistrate was of the view that litigation must come to an end. I am in agreement with the submission by the appellant’s advocates that a mistake of an advocate should not be visited upon the client. That preposition of law however has limitations. In my view, failure of an advocate to attend court is not a mistake. It is either professional negligence or abdication of duty for which the client has recourse against the advocate. Secondly, a person citing advocate’s mistake as an excuse for not taking particular action in court proceedings must demonstrate that as a party to the proceedings, he was on his part vigilant. He must show that he was keen in taking the particular action but was let down by the advocate. In this particular case, when the case came up for hearing before the lower court, both the appellant and his advocate were absent. It then took the appellant three (3) years to change advocates and move the court to set aside judgment that was entered in his absence. No explanation was given by the appellant why that application was not brought earlier. I believe that if the appellant was diligent enough, it would not have taken him three (3) years to know that the lower court case had proceeded in his absence and that judgment had been entered against him. It is also not correct as submitted by the appellant that he was denied an opportunity to present his defence. As observed by the learned magistrate, the defendant had over two years after the close of the respondent’s case in the lower court to present his defence but failed to do so. I am also not persuaded that the failure by the learned magistrate to set aside the judgment that was entered on 6th June, 2006 occasioned a miscarriage of justice. Justice must be looked at from both sides. In the circumstances of this case it would have been unjust to set aside judgment after three (3) years to enable the appellant to put up a defence which he had failed to put forward after being given adequate time do so. It should be noted that by the time the appellant moved the court to set aside the said judgment, the dispute between the parties had been in court for over twelve (12) years.

Conclusion;

Due to the foregoing, I find no merit in this appeal. The same is dismissed with costs to the respondents.

Dated, signed and delivered at KISII this 1st day of November 2013.

S. OKONG’O,

JUDGE.

In the presence of:-

………………………………………… for the Appellant

…………………………………………..for the 1st Respondent

…………………………………………..for the 2nd Respondent

…………………………………………...Court Clerk.

S. OKONG’O,

JUDGE.