[2023] KEHC 26334 (KLR)

Kirimi v Makena (Civil Appeal E098 of 2021) [2023] KEHC 26334 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26334 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E098 of 2021

EM Muriithi, J

December 7, 2023

Between

Godfrey Kirimi

Appellant

and

Catherine Makena

Respondent

Ruling

1. By a notice of motion under certificate of urgency dated 21/3/2023, pursuant to order 51 rule 1 and order 12 rule 7 of the Civil Procedure Rules, sections 1A, 1B & 3A of the Civil Procedure Act, article 159 (2) of the Constitution and all other enabling provisions of the law, the appellant seeks that:1. Spent2. This honourable court be pleased to the set aside the order of the court made on January 23, 2023 dismissing this appeal and reinstate the same hearing.3. Costs of this application be provided for.

2. The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Muthoni Njeru, the appellant’s advocate sworn on even date. He avers that the appellant filed the record of appeal on 6/10/2022 in compliance with the court’s directions, and what is now pending is directions as to the hearing of this appeal. After perusal of the court and their records, they realised that no notice for 23/1/2023 was issued to them to inform them of the hearing date before the service week court. That inadvertent error and/or mistake should not be visited upon the appellant who is passionately ready and willing to prosecute this appeal. He urges that the appellant will suffer great prejudice unless he is given an opportunity to be heard so that the ends of justice can be met.

3. The respondent opposed the application vide her replying affidavit sworn on 10/5/2023. She avers that the application is brought in bad faith, tainted with lies to mislead the court and the same should be dismissed as it was brought 3 months after the appeal was dismissed. She urges that she has been greatly prejudiced by the actions of the appellant, as the judgment herein was entered on 2/7/2021 for the sum of Kes 450,000.

Submissions 4. The appellant urges that the delay herein is not prolonged and thus excusable, noting that no party will be prejudiced if the matter is set down for hearing, and cites Ivita v Kyumbu (1984) KLR 441. He urges that he has an arguable appeal which should be heard on its merits and has at all times been willing to prosecute it.

5. The respondent urges that there was inordinate, unreasonable and inexcusable delay in bringing this application, and cites Mwangi S Kaimenyi v Attorney General and another (2004) eKLR, Francis K Chabari & another v Mwarania Gaichura Kairubi (2022) eKLR Utalii Transport Co Ltd and 3others v NIC Bank and another (2014) eKLR, Board of Kenya v Samuel K Kihiu & 3 others (2014) eKLR and Nzoia Sugar Company Limited v West Kenya Sugar Limited (2020) eKLR. She urges the court to dismiss the application with costs, so that she can enjoy the fruits of her judgment, and cites Shah v Mbogo (1979) EA 116, Ivita v Kyumbu (1984) KLR 441, Nicholas Kiptoo Arap Korir Salat v IEBC & 6others (2013) eKLR and County Government of Tana River & another v Hussein Fumo Hiribae (2021)eKLR.

Analysis and determination 6. The singular issue for determination is whether the court orders of 23/1/2023 dismissing the appellant’s appeal should be set aside.

7. After the appellant lodged his appeal in this court, directions were taken on 6/12/2022 that the same be heard by way of written submissions. The court then ordered that the matter was to be mentioned on 26/1/2023 for further directions during the service week.

8. The record shows that the appeal was listed for hearing on 23/1/2023 before the service week Court (Lady Justice Mwanaisha Shariff) and upon request by Mr. Murango Mwenda for the respondent, in the absence of counsel for the appellant, dismissed the appeal for want of prosecution. There was obvious error in the hearing dates communicated by the Court, but the Judge as visiting Judge may not have been aware of the date earlier given to the parties as 26/1/2023.

9. That is the order that the appellant has applied to set aside, on the ground that he was not aware of the hearing date. The Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas &another Civil Appeal No. 6 of 2015 (2016) eKLR Makhandia, Ouko (as he then was) & M’Inoti, JJ.A has guided as follows: -‘In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v Attorney General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v Election Tribunal, Koteh, AIR 1955 SC 664, at 711:“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”See also Frigonken Ltd v Value Pak Food Ltd, HCCC NO 424 of 2010. ” [emphasis added]

10. I also respectfully note the words of the court (EC Mwita J.) to similar effect and citing the same Indian case in Gerita Nasipondi Bukunya & 2 others v Attorney General [2019] eKLR,“The court is given the unfettered discretion to set aside its judgment in order to do justice to parties before it where circumstances permit since the primary duty of the court is to dispense justice to all by giving all parties an opportunity to be heard when applying the rules of procedure. It is in that regard that The Supreme Court of India stated in Sangram Singh v Election Tribunal, Koteh, AIR 1955 SC 664, at 711. ”

11. This court is persuaded that the appellant’s absence in court on the date of the hearing of the appeal on 23/1/2023 was due to the fact that neither he nor his counsel had notice thereof. Needless to state, the court had directed that the matter would be mentioned on 26/1/2023 for further directions during the service week but in an expected turn of events, the appeal was heard 3 days earlier on 23/1/2023 in the absence of the appellant and his counsel.

Orders 12. Accordingly, for the reasons set out above, this court finds merit in the appellant’s application dated 21/3/2023 and allows it in terms of prayer 2 of the Notice of Motion.

13. The appellant shall file written submissions on the appeal within 30 days and the respondent shall file written submissions within 30 days of service and the matter shall proceed for hearing of the Appeal on 26/2/2024 before Court III.

14. Cost in the Cause.Order accordingly.

DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mugambi Nyaga for appellant.Mr. Murango Mwenda for Respondent.