[2022] KEHC 1229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

COMMERCIAL CASE NO. E029 OF 2020 (OS)

IN THE MATTER OF SECTIONS 55 AND 56 OF THE ADVOCATES ACT

AND

IN THE MATTER OF ORDER 52 RULES 4 AND 7 OF THE CIVIL PROCEDURE ACT AND RULES, 2010

(ORDERING AN ADVOCATE TO DELIVER CASH OR CASH ACCOUNT IN AN ADVOCATE/CLIENT

RELATIONSHIP UNDER ORDER 52 RULES 4 AND 7 OF THE CIVIL PROCEDURE RULES)

BETWEEN

KLAUS MILINSKI.................................................................................................APPLICANT

AND

KENNEDY OGERO MOKAYA................................................................1ST RESPONDENT

MOKAYA OGUTU & COMPANY ADVOCATES................................2ND RESPONDENT

RULING

[1]The Notice of Motion dated2ndNovember 2021was filed herein by the respondents underSections 1A, 1Band3Aof theCivil Procedure Act, Chapter 21of theLaws of Kenyaas well asOrder 21 Rule 7 and Order 51 Rule 1of theCivil Procedure Actfor orders that:

[a]Spent

[b]the Court be pleased to vacate and set aside the judgment/order of 21stOctober 2021 and all consequential orders made thereto;

[b]the Court be pleased to grant leave to the respondents to file a Replying Affidavit out of time to the applicant’s Originating Summons dated17thDecember 2020;

[c]the Court be pleased to make any other or such further orders as it may deem fit and just to grant;

[d]Costs of the application be provided for.

[2] The application was predicated on the grounds that this matter came up on the 18thOctober 2021 for the hearing of the applicant’s Originating Summons; that counsel for the respondents had challenges in logging into the Microsoft Teams portal for virtual hearing as the link given in the day’s cause list turned out not to be the correct one; that by the time counsel received the correct link and managed to log in, the matter had been called out; and that the Court proceeded to hear the Originating Summons ex-parte and delivered its verdict on 21stOctober 2021.

[3] The respondents further contended that they were ready for hearing on the 18thOctober 2021 as provided for under Order 52 of the Civil Procedure Rules; and that they had a good defence on the merits against the applicant’s claim. They consequently prayed for an opportunity to present that defence and asked that the Court be pleased to set aside the dismissal order and to grant them leave to file a Replying Affidavit out of time.

[4] The application was supported by the affidavit of Vincent Omollo, Advocate, sworn on 2ndNovember 2021. At paragraph 2 of that affidavit, Mr. Omollo deposed that he duly logged in on the morning of 18thOctober 2021,via the virtual link posted on the day’s cause list, but nothing was taking place. He added that it was not until 9. 45 a.m. when information came through the Mombasa Law Society WhatsApp chat group giving the correct link for the Court’s virtual proceedings. Mr. Omollo further averred that, by the time he logged in, this matter had been called out and dealt with in his absence and set for ruling on 21stOctober 2021.

[5] At paragraph 4 of his affidavit, Mr. Omollo further deposed that on learning of the court proceedings of 18thOctober 2021, he immediately filed an application under Certificate of Urgency dated 19thOctober 2021 in a bid to arrest and/or forestall any further proceedings in this matter without the participation of the respondents. He added that the respondents have a good defence to the Originating Motion; and that failure to attend Court in time on 18thOctober 2021 was not deliberate or intentional. He urged that the respondents be granted the orders prayed for in the interest of justice and fair play. Counsel annexed to his affidavit copies of the Cause List for 18thOctober 2021, among other documents, to buttress his assertions.

[6] The applicant opposed the application; and to that end he filed Grounds of Opposition on 5thNovember 2021, contending that:

[a] No explanation has been given by the respondents as to why no affidavit or grounds of opposition were filed in response to the Originating Summons, which was served on them on the 21stApril 2021;

[b] Mr. Omollo’s allegation that he was ready to proceed on the 18thOctober 2021, but could not log in, is flawed due to the fact that no affidavit in reply or grounds of opposition had been filed on behalf of the respondent before the hearing date. There would have been no ground/basis/paperwork enabling him to proceed on that day;

[c] By 18thOctober 2021, the respondents were already in breach of Order 51 Rule 14 of the Civil Procedure Rules;

[d] As per the ruling of Hon. Mabeya, J. at paragraph 31(b), the respondent was to have his Bill of Costs taxed within 60 days from the date of the ruling, which time expired on 18thJanuary 2021;

[e]The respondents’ proposed affidavit admits that they were withholding Kshs. 3,600,000 /=; which is yet to be released to the applicant;

[d] The proposed affidavit has no new facts or evidence to be adduced; and that the instant application is a mere ploy to further delay execution.

[7] Directions were then given herein on 11thNovember 2021 that the subject application be canvassed by way of written submissions. Although the respondents were to file their written submissions within 7 days of that order, the record shows that, by 9thDecember 2021 when Ms. Moolrajfiled her written submissions, Mr. Omollo had not complied. Thus, Ms. Moolraj urged the Court to dismiss the subject application, questioning why no affidavit was filed before 18thOctober 2021. She urged the Court to find that this fact alone belies the contention by Mr. Omollo that he was ready and prepared to proceed with the hearing on 18thOctober 2021 had he successfully logged in for the virtual court session for the day.

[8] It was further the submission of Ms. Moolraj that the respondents have no real defence to the suit; and that the contents of the proposed affidavit have been canvassed thoroughly before Hon. Mabeya, J.; and therefore that all the respondents are interested in is to buy more time. In response to the assertion that the respondents are holding the funds as lien for unpaid fees, counsel pointed out that, although Hon. Mabeya, J. made an order for the respondents to have their Bill of Costs taxed within 60 days of the ruling; which period expired on 19thJanuary 2021, no such taxation has been done.

[9] Moreover, counsel submitted that an advocate has no authority to withhold a client’s funds as lien for fees. He relied on John Karungai Nyamu & Another v Muu Associates Advocates [2008] eKLR and Jack & Jill Supermarket Limited v Gitonga Kimani & Another, Milimani Misc. Application No. 388 of 2002. She consequently prayed that, should the Court be inclined to set aside its ruling and orders of 18thOctober 2021, the same be done on terms that are just.

[10] On the record are written submissions purportedly filed on behalf of the respondents on the 11thFebruary 2022 by M/s Kamoti Omollo & Company Advocates. The submissions are dated 10thFebruary 2021; which could be a typographical error, granted that the pertinent application is dated 2ndNovember 2021; while the order for the filing of written submissions was made on 11thNovember 2021. Be that as it may, the directions were explicit that the respondents were to comply and file written submissions within 7 days from 11thNovember 2021 to enable a response by counsel for the applicant.

[11] Counsel for the applicant indicated that she filed her submissions “blindly”, that is to say, without first gaining sight of the respondent’s written submissions as ought to have been the case. The question to pose, then, is whether it would be unfair to take into account the respondent’s written submissions that were filed way out of the timelines set on 11thNovember 2021. In weighing the competing interests of the parties, I note that Ms. Moolrajalso filed her submissions outside the 7 days given to her; but understandably so; for her 7 days were to be reckoned from the date of service by Mr. Omollo. Secondly, Mr. Omollo’s written submissions are fairly brief. He merely reiterated his explanation for failure to log in in good time for the virtual proceeding; and underscored his assertion that the respondents have a good defence. He also cited the provisions of Articles 47 and 159 of the Constitution as to the tenets of fair hearing and did not cite any authorities that would require research on the part of Ms. Moolraj to respond to. It is therefore my finding that no prejudice would be visited on the applicant if those submissions are taken into account. I have accordingly taken them into consideration in this ruling.

[12] In his written submissions, Mr. Omollo explained that his failure to attend court on 18thOctober 2021 was neither deliberate nor intentional. He reiterated his explanation that the same was due to misleading information by the Court Registry on the link for joining the Court’s virtual proceedings for that day. He therefore prayed that the respondent be given an opportunity to present his defence to this suit.

[13] I have given due consideration to the application, the averments in support as well as the Grounds of Opposition raised by the applicant. I have similarly taken into account the written submissions filed by learned counsel and the proceedings held to date. I must mention that a good deal of effort was put into convincing the Court that the respondent has no defence to this suit; and that it would be pointless setting aside the ex parte proceedings and Judgment delivered herein on 21stOctober 2021. I have summarized her submissions in this regard at paragraphs 9 and 10 of this ruling. In my considered view however, the key issue is simply whether a plausible explanation has been offered as to why the respondent and his counsel did not attend court for hearing on 18thOctober 2021. This is because Order 12 Rule 7 of the Civil Procedure Rules under which the instant application has been brought, recognizes that:

“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

[14] In the premises, the issue for determination is not whether a good defence to the Originating Summons exists; but whether sufficient cause has been shown for the exercise of the Court's discretionary powers to set aside the dismissal order. The application is grounded on the fact that the cause list for the 18thOctober 2021 gave an incorrect link; and that by the time counsel was given the correct link, this matter had already been called and dealt with. Counsel for the respondents annexed a copy of the cause list in proof of his assertions; and I did no hear counsel for the applicant refute those allegations.

[15]That being the case, it becomes evident that failure by the respondents and their counsel to attend court when this matter proceeded ex parte on the 18thOctober 2021 was due to no fault of theirs; and therefore that a plausible justification has been given for the setting aside of those ex parte proceedings and judgment. In Juma & Another v Attorney General [2003] eKLR it was held that:

“It is an elementary principle in our system of the administration of justice, that a fair hearing within a reasonable time, is ordinarily a judicial investigation and listening to evidence and arguments conducted impartially in accordance with the fundamental principles of justice and due process of law and of which a party has had a reasonable notice as to the time, place and issues or charges, for which he has had a reasonable opportunity to prepare at which he is permitted to have the assistance of a lawyer of his choice, a he may afford and during which he has a right to present his witnesses and evidence in his favour, a right to cross-examine his adversary’s witnesses, a right to be appraised of the evidence against him in the matter so that he would be fully aware of the basis of the adverse view of him for the judgement, a right to argue that a decision be made in accordance with the law and evidence.”

[16] Moreover, the right to a fair hearing is now a constitutional imperative. This was well articulated by Hon. Nyakundi, J. in Pinnacle Projects Limited vs. Presbyterian Church of EastAfrica, Ngong Parish & another [2018] eKLR thus:

“While the wording of Article 50 of the Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.”

[17] Thus, the overall objective of the Court in such instances is to ensure even-handedness in the adjudication of disputes; and therefore where a convincing reason has been given by a party for failure to attend court, the Court ought to accord such a party a chance to be heard. In CMC Holdings Limited v Nzioki [2004] 1 KLR 173, it was held that:

“In law, the discretion that a Court of law has, in deciding whether or not to set aside an ex-parte order…was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would...not be proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error..."

[18]And in Philip Chemwolo & Another vs. Augustine Kubende [1982-88] KAR 103, it was observed that:

"...the broad equity approach to these matters is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs..."

[19] In the premises, I find merit in the application dated 2ndNovember 2021. The same is hereby allowed and orders made as hereunder:

[b]that the Judgment dated 21stOctober 2021 be and is hereby set aside along with all orders consequential thereto

[b]That leave be and is hereby granted to the respondents to file a Replying Affidavit out of time to the applicant’s Originating Summons dated17thDecember 2020. The same be filed and served within 14 days from the date hereof.

[c]That costs of the application be costs i`n the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS THIS 9THDAY OF MARCH, 2022

OLGA SEWE

JUDGE