[2017] KEHC 338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 57 OF 2015

(An appeal from the Ruling of the Chief Magistrate in CMCC No. 49 of 2014 dated 9/11/2015)

JOHNSTONE NYAGA T/A GERISH HOTEL.......APPELLANT

VERSUS

PURITY NJAGI.......................................................RESPONDENT

J U D G M E N T

1. In his amended memorandum of appeal dated 24/02/2016, the appellant relies on four grounds of appeal. Firstly, he states that the learned magistrate erred in law by failing to set out points of determination, failed to state the decision thereon and the reasons for such decision.

2. Secondly, it is contended that the appellant was denied the right to be heard in all occasions culminating to the judgment delivered on 4/02/2015. Thirdly, that the magistrate erred by allowing the respondent's application dated 31/10/2014 in the absence of the appellant and his advocate and also failed to consider the statement of defence in granting final orders.

3. Finally, that the magistrate erred by dismissing the appellant's application dated 6/07/2015 seeking to set aside the exparte judgment delivered on 4/02/2015 which is inconsistent with the right to a fair hearing.

4. The appeal was vehemently opposed by the respondent who argued that this appeal was against the ruling of M.N. Gicheru, Chief Magistrate delivered on 9/11/2015 and yet the grounds in the memorandum of appeal relate to other earlier applications.

5. It is also contended that the appellant was given fair hearing in all the applications and it was his choice not to attend hearing of the application dated 31/10/2014 since he had been served. The respondent urged the court to disregard all the grounds not relating to the application dated 9/11/2015 as irrelevant.

6. This appeal was argued by way of written submissions. The appellant was represented by Mugambi Njeru & Co. advocates while the firm of Fatuma Wanjiku & Co represented the respondent.

7. The duty of the first appellate court was discussed in the case of MWANGI VS WAMBUGU,[1984] KLR 453thus:-

“A Court of Appeal will not normally interfere with a finding fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial Judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

8. The first issue for determination in this appeal has been identified as to whether the appeal is against the ruling of M.N. Gicheru Chief Magistrate delivered on 9/11/2015 or it is against the ruling of the applications dated 31/10/2014 and 6/07/2015. It is imperative that I deal with this issue first before deciding on the other issues arising herein.

9. The first memorandum of appeal dated 9/12/2015 was filed by Gachie Mwanza and company advocates who were on record for the appellant. The introductory paragraph read as follows:-

The appellant herein being dissatisfied with the ruling of M. N. Gicheru, Chief Magistrate in Embu Civil Case No. 49 of 2014 delivered on 2015 appeals before this honourable court on the following grounds.

10. The grounds then follow listed as 1 – 5 and may be summarized as follows:-

(1) That the magistrate erred in failing to set out points of determination.

(2) That the appellant was denied the right to be heard on all occasions.

(3) That the magistrate erred in allowing the respondent's application which sought orders with finality.

(4) That the magistrate erred in dismissing the application dated 6/07/2015 which sought to set aside judgment entered on 4/02/2015.

(5) That the magistrate erred in entertaining an incompetent application by the respondent.

11. The appellant through Mugambi Njeru & Co. advocates filed an amended memorandum dated 25/02/2016. It adopted the same introductory paragraph and grounds 1 and 2 by Gachie Mwanza & Co. without an alteration. Grounds 3 and 4 were adopted with minor amendments while ground 5 was struck out and a new ground inserted.

12. The introductory paragraph in any memorandum of appeal is very important for it introduces the subject of the appeal. Any person reading it is able to know what subject the appellant has brought to the attention of the court. The grounds that follow are expected to deal with the subject of the appeal which has already been introduced. The grounds cannot introduce new matters subjects which are not the subject of the appeal.

13. In the appeal before me, both the original and the amended memorandum give the subject which aggrieved the appellant as the ruling delivered on 9/11/2015 for the application dated 6/7/2015 by Hon. M. N. Gicheru. Most of the grounds that follow relate to other subjects which are not the subject of the appeal.

14. For instance, the appellant faults the magistrate for failing to allow the setting aside of the exparte judgment delivered on 4/2/2015. Yet he did not appeal against this ruling at the right time and now introduces it in this appeal about 10 months later. The said ruling is not contained in the memorandum of appeal as required.

15. However, there is a decree signed by Hon. Gethi Kibiru for judgment of Shs.550,000/= in favour of the respondent among other orders.

16. The order was issued on 4/02/2015 and decree signed on 24/02/2015. The orders resulted from the application dated 31//10/2014. The appellant never appealed against this ruling after delivery and as required by the law. He filed an application to set aside, discharge the decree and all consequential orders in the application dated 6/07/2015. This was five months after the decree was issued.

17. The application dated 6/07/2015 was heard and dismissed on 9/11/2015. It is against this ruling that the applicant now appeals against.

18. I find that the grounds relating to the applications dated 31/10/2014, the ruling and decree issued on 4/02/2015 are not relevant to this application and are hereby struck out.

19. The issues for determination in this appeal in regard to the application dated 6/07/2015 are as follows:-

(1) Whether the appellant was denied the right to be heard.

(2) Whether the magistrate erred in failing to set out the points of determination.

(3) Who meets the costs of this appeal.

20. The proceedings fo 20/07/2015 show that both parties and their advocates Ms. Njoroge for the applicant and Ms. Ndeke for the respondent appeared before the presiding magistrate Hon. M. N. Gicheru for hearing of the application. The parties recorded a consent that the application was to be argued by way of written submissions. The appellant on his request was accommodated to file a supplementary affidavit with corresponding leave to the respondent.

21. The case was mentioned on 24/08/2015 but the appellant had not yet filed submissions. He was given up to the 14th September 2015 which was another 21 days. The appellant had not filed by 14/09/2015. His counsel undertook to file the submissions on that day and requested the court to give a date for ruling. The court gave the date of 9/11/2015 during which it promptly delivered its ruling in presence of advocates holding brief for the parties.

22. In his ruling, the magistrate said that he had considered the pleadings and arguments of the parties as well as their submissions. This confirms that both parties filed submissions which the court duly considered. The record bears witness that both parties were present and were represented by their advocates during the hearing. It is therefore dishonest for the appellant to say that he was not accorded his constitutional rights to be heard.

23. The filing of this appeal is tantamount to an abuse of the due process of the court. The ruling was not a judgment and it was not mandatory to set out the points for determination. However, the court wrote a brief but well reasoned ruling.

He said:-

Firstly there is no reason given by the applicant for failing to appear in court 4/7/15 even though the advocate had been served on 22/1/15. A good explanation was expected from the advocate. None has been forthcoming. The applicant's counsel ought to have sworn an affidavit to explain this discrepancy and serious omission.

Secondly, the applicant is not offering anything like security for the due performance of the decree yet he continues keeping the respondents goods contrary to their agreement of 3rd January, 2014.

For the above stated reason, I dismiss the application dated 6/7/15 with costs to the respondent.

24. Looking at the prayers in the application mainly for setting aside the orders of Hon. Gethi Kibiru of 4/02/2015, the appellant was duty bound to give reasons why he or his advocate did not attend court for hearing of the application dated 31/10/2015 which resulted in the said orders. If he and his advocate gave no reasons for failure to attend court, the court was justified to dismiss the application.

25. I reach a conclusion that both parties were heard in the application as required by the law and that the ruling of the learned magistrate was based on the facts presented before him and on the law applicable.

26. I find no merit in this appeal and it is hereby dismissed with costs.

27. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Wambugu for Mugambi for Appellant

Mr. Ongweno for Fatuma for respondent