[2022] KEHC 13987 (KLR)

Karanja v Abdulkarim & another (Civil Suit 443 of 2014) [2022] KEHC 13987 (KLR) (Civ) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13987 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 443 of 2014

CW Meoli, J

October 11, 2022

Between

Wamaitha Karanja

Plaintiff

and

Abdallah Abdulkarim

1st Defendant

Aga Kan University Hospital, Nairobi

2nd Defendant

Ruling

1. For determination is the motion dated October 5, 2021 by Dr. Abdallah Abdulkarim and The Aga Khan University Hospital, Nairobi, the 1st & 2nd defendant/defendants (hereafter the 1st & 2nd applicant/applicants). The motion seeks inter alia that the court be pleased to set aside the ex parte proceedings, directions and or orders granted on October 5, 2021; that the applicants be granted leave to unconditionally defend the matter; and that the honorable court do consider the defence, witness statement and bundle of documents as submitted by the applicants to be duly and procedurally on record. The motion is expressed to be brought under article 50 of the Constitution, section 3A of the Civil Procedure Act and order 10 rule 11 of the Civil Procedure Rules, among others. The grounds on the face of the motion are amplified in the supporting affidavit sworn by Obara Nicolas Andrew, counsel for the applicants having conduct of the matter.

2. Counsel deposes that on October 5, 2021 when the matter came up for hearing the applicants were ready to proceed having filed their pleadings and duly complied. That despite the foregoing the matter was listed for formal proof hearing on the basis that there was interlocutory judgment in place against the applicants. He contends that on September 25, 2019 the applicants motion dated February 25, 2019 seeking to set aside the interlocutory judgment against the applicants had been listed for directions and was set down for mention for purposes of taking a ruling date within certain timelines failing which it would stand dismissed.

3. He deposes further that attempts to comply with the court’s directions were frustrated by the fact that the court file could not be traced in time and as such the motion stood dismissed due to no fault of the applicants. Counsel asserts that if the present motion is not allowed the applicants stand to be greatly prejudiced as they will be condemned unheard despite having a defence that ought to be determined on merit. That Wamaitha Karanja, the plaintiff herein (hereafter the respondent) will not suffer any great prejudice that cannot be remedied by an award of costs. In conclusion he deposes that the instant motion is meritorious and that the exparte proceedings and or directions ought to be set aside.

4. On his part, the respondent filed grounds of opposition dated October 29, 2021 in response to the motion. The respondent takes particular issue with the motion on grounds that the applicants notice of motion is misconceived, incompetent and fatally defective; that the judgment in default was entered regularly on July 3, 2015; that the applicants notice of motion dated October 5, 2021 does not seek to set aside the regularly entered judgement; that the applicants have previously made a similar motion which stood dismissed due to their failure to comply with the court’s direction and that the applicants have not sought to reinstate the stood dismissed motion; that the applicants have not discovered or provided any new information to warrant the re-opening of the matter; and that the application is brought in bad faith, is an abuse of the court process and ought to be dismissed with costs.

5. The motion was canvassed by way of written submissions. Counsel for the Applicants anchored his submissions on article 159 (2)(d) of the Constitution of Kenya, the provisions of section 1A & 1B of the Civil Procedure Act and several decisions including Almond Resort Limited v Mohamed Mahat Kuno [2019] eKLR,D.T Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina [1980] eKLR, with respect to the applicable principles. It was submitted that the applicants have at no instance abused the court process and have offered a reasonable explanation why their motion dated February 25, 2019 was never heard on merit and that the record of proceedings will bear witness to accurate position in the matter. It was further contended that no prejudice shall be occasioned upon the respondent and that delay in the matter could have been averted on October 5, 2021 had the respondent conceded to the applicant’s pleadings being admitted on record thus allowing for cross examination of the respondent’s witness and thereafter the applicant presenting its case. In conclusion the court was urged to allow the motion and have the matter determined on merit.

6. On behalf of the respondent, counsel anchored his submission on order 10 rule 11 of the Civil Procedure Rules and the decision in Esther Wamaitha Njihia & 2 Others v Safaricom Limited [2014] eKLR concerning the principles undergirding the setting aside of an interlocutory or exparte judgment. While calling to aid the decision in Wachira Karani v Bildad Wachira[2016] eKLR as cited in Joswa Kenyatta v Civicon Limited [2020] eKLR it was submitted that the test on whether a court can consider and or exercise its discretion in setting aside proceedings is whether the applicant has shown and or demonstrated sufficient cause warranting setting aside of the ex partedecision or proceedings.

7. Restating the facts of the case, counsel highlighted the following. That default judgment herein was entered on July 3, 2015 and when the applicants were regularly served with hearing notices, they filed an application to set aside default judgment on February 28, 2019. It was further asserted that the foregoing motion was dismissed pursuant to the court orders issued on September 25, 2019 but since then, the applicants had neither sought to set aside the dismissal order nor instituted an appeal in respect of the said orders. That this court had already exercised its discretion in allowing the applicants to file the motion dated February 25, 2019 but the applicants failed to prosecute the same and that continued delay in concluding the matter prejudices the respondent. Counsel therefore reiterated that the applicants have not demonstrated sufficient cause in the present motion to warrant setting aside of the proceedings of October 5, 2021 pointing out that the motion does not seek to set aside the interlocutory judgment entered on July 3, 2015. Counsel asserted that the motion lacks merit, is a deliberate attempt to further delay the matter and that the applicants are undeserving of the exercise this court’s discretion in their favour and the motion ought to be dismissed with costs.

8. The Court has considered the rival affidavit material and submissions in respect of the motion as well as the record herein. The court is called upon to determine whether it ought to set aside the ex parte proceedings, directions and or orders issued on October 5, 2021. The applicants’ motion is expressed to be brought under sections 3A of the Civil Procedure Act and order 10 rule 11 of the Civil Procedure Rules. order 10 of theCivil Procedure Rules pertains to “consequence of non-appearance, default of defence and failure to serve”. Surprisingly, the specific prayers in the applicants’ motion do not include a prayer to set aside the interlocutory judgment herein, but rather the setting aside of ex parte proceedings, directions and or orders granted on October 5, 2021; leave to unconditionally defend the matter; and admission of documents filed by the defendant. It seems to me therefore, based on the facts of the case, that what the applicants are effectively seeking is to set aside the interlocutory judgment for some key prayers in the motion cannot be granted while the said judgment subsists. Obviously, the initial application for setting aside the judgment having stood dismissed and not reinstated, the applicants were hard placed to include a similar prayer in the instant motion. That said, an application to set aside ex parte proceedings falls under order 12 rule 7 of the Civil Procedure Rules and not order 10 rule 11 invoked by the applicants.

9. The grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, the discretion must be exercised judicially and justly. The rationale for the discretion to set aside conferred upon the court was spelt out in the case of Shah v Mbogo and Another [1967] E.A 116:“The discretion to set aside an ex parte judgment 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 a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

10. The events leading to the order issued on October 5, 2021 are undisputed as captured on the record herein. On October 5, 2021 the suit was listed for hearing and upon hearing arguments by the respective counsel this court made an order to the effect that the applicants had no audience, and the suit was to proceed for formal proof. The reasons for the order will become apparent in the course of this ruling.

11. In the case of Wachira Karani v Bildad Wachira [2016] eKLR, Mativo J (as he then was) elaborated on the applicable principles and the legal threshold warranting a court’s exercises of its discretion in favour of an applicant seeking to set aside ex parte proceedings by stating inter alia that:“Also relevant is the case of Ongom v Owota[8] where the court held inter alia that the court must be satisfied about one of the two things namely:-(a)either that the defendant was not properly served with summons;(b)or that the defendant failed to appear in court at the hearing due to sufficient cause.It's important for me to mention that in the above case, the court defined what constitutes sufficient cause and in this respect the following paragraph is highly relevant to the issues before me:-"Once the defendant satisfies the court on either, the court is under duty to grant the application and make the order setting aside the ex partedecree, subject to any conditions the court may deem fit. However, what constitutes 'sufficient cause' to prevent a defendant from appearing in court, and what would be 'fit conditions' for the court to impose when granting such an order, necessarily depend on the circumstances of each case.Although it is an elementary principle of our legal system, that a litigant who is represented by an advocate, is bound by the acts and omissions of the advocate in the course of the representation, in applying that principle, courts must exercise care to avoid abuse of the system and or unjust or ridiculous results. A litigant ought not to bear the consequences of the advocates default, unless the litigant is privy to the default, or the default results from failure, on the part of the litigant, to give the advocate due instructions"The applicant is required to satisfy to the court that he had a good and sufficient cause. What does the term "sufficient cause" mean? The Court of Appeal of Tanzania in the case of The Registered Trustees of the Archdiocese of Dar es Salaam v The Chairman Bunju Village Government & Others[9] discussing what constitutes sufficient cause had this to say:-“It is difficult to attempt to define the meaning of the words ‘sufficient cause’. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want ofbona fide, is imputed to the appellant”InDaphene Parry vs Murray Alexander Carson[10] the court had the following to say:-‘Though the court should no ‘doubt’ give a liberal interpretation to the words ‘sufficient cause,’ its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy,......” (sic)

12. The court concluded by stating that:“………I again repeat the question what does the phrase "sufficient cause" mean. The Supreme Court of India in the case of Parimal vs Veena observed that:-"Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a curious man. In this context, "sufficient cause" means that a party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." ...(sic)

13. Similarly in this case, it was imperative for the applicants to demonstrate sufficient cause to unlock the court’s exercise of judicial discretion. The pertinent and undisputed facts of this matter are that the respondent filed this suit on December 11, 2014 but despite due service of summons to enter appearance, the applicants failed and or neglected to enter appearance or file defence within the prescribed time. Upon the respondent’s request, interlocutory judgment was entered on July 3, 2015 against the applicants, and thereafter the respondent’s scheduled the suit for formal proof hearing on June 25, 2018. On that date, counsel appearing for the applicants indicated to the court that he has just been instructed to come on record and consequently the suit was adjourned to September 19, 2018 for further directions. On the latter date, upon hearing counsels on record, the court while observing that the applicants were at liberty to move the court as they deemed appropriate directed that the matter be set down for hearing.

14. It seems the applicants did not take any steps beyond filing the motion dated February 28, 2019 seeking to set aside the interlocutory judgment and on March 4, 2019 the respondent set down the matter for hearing. On that date however, the applicants sought an adjournment on grounds that their motion dated February 28, 2019 seeking to set aside the interlocutory judgment was pending before court. The court thus directed that the motion be canvassed first before the suit could be heard. There followed several attendances when directions and adjournments regarding the applicants’ motion dated on April 24, 2019, May 28, 2019 and June 26, 2019.

15. On September 23, 2019 when the matter came up for the hearing of the applicants’ motion, it was adjourned because the applicants’ counsel had failed to comply with the court’s earlier directive on payment of court adjournment fees. The matter was rescheduled for further directions and to confirm compliance on the part of the applicants on September 25, 2019. Once more the court learned that the applicants were yet to comply and consequently directed that the applicants to comply with directions it had earlier issued and fix the matter for mention at the registry within fourteen (14) days of the said date, failing which the motion seeking to set aside interlocutory judgment would stand automatically dismissed and the respondent at liberty to fix the matter for formal proof. Eventually on October 5, 2021 when the matter came up for formal proof, the court declined audience to the applicants and proceededex parte, the said proceedings being the subject of the instant motion.

16. Upon examination of the record of the chronology of events, the court notes that pursuant to directions issued by this court on September 25, 2019, the applicants’ initial motion dated February 25, 2018 stood dismissed at the expiry of the 14 days granted by the court as the motion was not prosecuted within the said timeline. Further no application for reinstatement and or enlargement of time to comply with the court’s directive was filed by the applicants.

17. By their affidavit material before the court the applicants have attempted to explain their failure to prosecute the dismissed motion and or comply with the court’s directions, citing frustration from the fact that the court file could not be traced in time. No cogent supportive material has been exhibited to demonstrate the alleged attempts in pursuit of the court file or to remedy the situation either by a complaint to the court and or letter to the Deputy Registrar. Besides, the matter had been active prior to the order of this court of September 25, 2019 by which date the applicants’ initial motion had been pending for one year and seven months. Thus, even if the court file was missing as alleged, in the brief window of 14 days allowed by the court on September 25, 2019 for the prosecution of the initial motion, there is no sufficient explanation for the delay attending the period prior.

18. The respondent on his part has correctly argued that this court had already exercised its discretion in allowing the applicants to file the motion dated February 25, 2019 and that the applicants squandered the opportunity by failing to prosecute the motion and that the continued delay in concluding the matter prejudices the respondent. The respondent asserted, quite correctly too that the applicants have not demonstrated sufficient cause to warrant the setting aside of the proceedings of October 5, 2021 and that the instant motion, as earlier pointed out, does not seek to set aside the interlocutory judgment entered on July 3, 2015, nor the reinstatement of the dismissed motion for setting aside.

19. The Court of Appeal in Daqare Transporters Limited v Chevron Kenya Limited [2020] eKLRin considering the discretion of the Court under the provisions of order 12 rule 7 of the Civil Procedure Rules restated the principle spelt out by its predecessor in Shah v Mbogo (supra), namely, that:“The discretion under order 12 rule 7 is exercised so as to avoid injustice as a result of inadvertent or excusable mistakes and errors. Therefore, a court needs to satisfy itself as to whether the reason given by the appellant was excusable……….…..The adage rule that the mistake of counsel should not be visited upon an innocent litigant does not have a blanket application. Nor do we think that it has doctrinal status. The court must always look into the conduct of the party pointing the finger of blame in order to make a just decision. “See also Shah v Mbogo

20. In this case there was no tangible evidence of inadvertence, excusable mistakes or errors tendered by counsel for the applicants. Undeniably, the applicants herein were granted several opportunities to be heard, but which were squandered. Parties and counsel are duty bound to co-operate with the court in the furtherance of the overriding objective to facilitate the just, expeditious, proportionate, and affordable resolution of disputes in accordance with section 1A and 1B of the Civil Procedure Act. Moreover, cases belong to parties and ultimately, the parties are responsible to ensure that their cases are progressed in a timely fashion. In this instance, none of the applicants deemed it necessary to swear an affidavit in support of the motion to explain, at the minimum, their efforts to follow up with their lawyer and their interest in defending the matter.

21. In Karuturi Networks Ltd & Anor v Daly & Figgis Advocates, Civil Appl. NAI. 293/09 the Court of Appeal had the following to say concerning the overriding objective in section 1A and 1B of the Civil Procedure Act:“The jurisdiction of this court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective….. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court”.

22. While applicants were entitled to be heard on the merits of its case, they squandered the opportunity without any apparent good reason and indeed the record of the court reflects lethargy and indolence on their part. It would be a travesty of justice and prejudicial in the circumstances of the case to make the respondent pay the price for the applicants’ persistent blundering and indifferent conduct that appears to border on negligence. The suit was filed almost eight years ago and continued delay not only works prejudice against the respondent but progressively diminishes the possibility of a fair trial being eventually conducted. In my considered and firm view, no sufficient cause has been shown to justify the court’s exercise of its discretion in the applicants’ favour. The justice of the matter lies in dismissing the motion dated October 5, 2021 with costs. It is so ordered.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 11TH DAY OF OCTOBER 2022C.MEOLIJUDGEIn the presence of:For the Applicants: Mr. ObaraFor the Respondent: Mr. MungaiC/A: Carol