[2022] KEHC 17053 (KLR)

Lumunge v Jwenge (Suing as the administrator and personal representative of the Estate of Elizabeth Hamisi- Deceased) (Civil Appeal 51 of 2020) [2022] KEHC 17053 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17053 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 51 of 2020

MN Mwangi, J

November 4, 2022

Between

JK Lumunge

Appellant

and

Dennis Mukidi Jwenge (Suing as the administrator and personal representative of the Estate of Elizabeth Hamisi- Deceased)

Respondent

(Being an Appeal from the ruling of Hon. F. Kyambia, the Senior Principal Magistrate, delivered on 7th February, 2020 in Mombasa Chief Magistrate’s Court Civil Case No. 1595 of 2010)

Judgment

1. The suit against the defendants in the lower Court was that on or about June 20, 2007, the deceased Elizabeth Hamisi was lawfully walking along Mikindani Road near Sunset when the 3rd defendant negligently and carelessly drove, managed and controlled the 1st and 2nd defendants’ motor vehicle registration No KAG 854H, causing it to veer off the road and knocked down the deceased. The plaintiff (respondent) averred that as a result of the said accident, the deceased sustained fatal injuries and her dependants and estate had suffered loss and damage. The respondent further averred that the 1st and 2nd defendants were the insured, beneficial and/or registered owners of motor vehicle registration No KAG 854H, driven, managed and controlled by the 3rd defendant who was the agent of the 1st and 2nd defendants. The plaint was amended through the amended plaint filed on October 11, 2022.

2. The 1st and 2nd defendants filed their statement of defence dated May 28, 2012 where they denied the averments contained in the plaint. The 1st defendant (appellant) filed his statement of defence dated June 3, 2011, wherein he denied being either the insured and/or beneficial owner of motor vehicle registration No KAG 854H as at June 20, 2007, as he had disposed of the same to a third party prior to the alleged accident, which wholly excluded him from liability in respect of acts of commission and/or omission arising out of the use of the said motor vehicle. The appellant further averred that the respondent’s claim was time barred pursuant to the provisions of Section 4 of the Limitation of Actions Act, Cap 22 and ought to be dismissed. He further averred that in the event that leave was granted to the respondent, then the said leave was incompetent and/or bad in law and contrary to the provisions of the said statute.

3. The matter before the Trial Court proceeded for hearing and judgment was delivered on November 2, 2018 in favour of the respondent against the appellant. On May 13, 2019, the appellant filed a Notice of Motion application dated May 10, 2019 where he sought orders for setting aside of the judgment delivered on November 2, 2018 in its entirety. He also prayed for the Court to discharge him from liability since he was found vicariously liable for the acts of the 3rd defendant, among other orders. In the said application, the appellant averred that his former Advocates on record abandoned the proceedings without advising him, thus occasioning him substantial miscarriage of justice. In addition, he stated that he had sold the suit motor vehicle to the 2nd defendant before the accident occurred and therefore, he should not be held liable for occurrence of the accident in issue.

4. The respondent in opposition to the said application, filed a replying affidavit sworn on May 24, 2019. He deposed that the said application did not raise any justified reason to warrant grant of any of the orders sought. He stated that the appellant was duly represented before the Trial Court by the law firm of Moses Mwakisha & Company Advocates who participated and complied with pre-trial directions, were served with every notice regarding the hearing of the matter but failed to appear in Court to defend the said suit out of negligence. The respondent relied on the provisions of Section 8 of the Traffic Act and stated that a copy of records of the suit motor vehicle shows that its registered owner was the appellant, a fact that has never been rebutted.

5. In the lower Court, a ruling was delivered on February 7, 2020, where the Court dismissed the appellant’s application dated May 10, 2019 with costs to the respondent. The appellant was dissatisfied by the said decision and on May 22, 2020, he filed a Memorandum of Appeal raising the following grounds of appeal-i.That the learned Magistrate erred in law and fact in failing to address the pertinent issue of the 1st defendant’s right to be heard in consonant (sic) with rules of natural justice that “no one to be condemned unheard” (sic);ii.That the learned Magistrate erred in law and fact in failing to consider at all that mistake of the 1st defendant’s Advocate occasioned non-representation;iii.That the learned Magistrate relied on wrong principles of law and fact in arriving at his decision;iv.That the learned Magistrate erred in law and fact by totally failing to address the impact of the 1st defendant’s ill health on his case;v.That the learned Magistrate’s ruling delivered on February 7, 2020 is prejudicial, unjust, and an unfair exercise of discretion; andvi.That the learned Magistrate erred in law and fact by failing to take into consideration the law and all facts tendered before it.

6. The appellant’s prayer is for the appeal to be allowed with costs and for the ruling delivered on February 7, 2020 by Hon F Kyambia, SPM, in respect of Mombasa CMCC No 1595 of 2010 to be set aside as against the appellant.

7. The appeal herein was canvassed by way of written submissions. The appellant’s submissions were filed by the law firm of Oenga & Company Advocates on June 23, 2020, whereas the respondent’s submissions were filed on October 9, 2020 by the law firm of Timamy & Company Advocates.

8. Mr Okinyi, learned Counsel for the appellant submitted that the appellant’s Advocate failed to attend a Court hearing on August 1, 2018 despite being served with a hearing notice on May 18, 2018 and that on August 1, 2018 the hearing was adjourned to August 10, 2018 when Counsel for the 2nd and 3rd defendants was able to cross-examine the plaintiff’s witnesses. In citing the provisions of Order 17(2) of the Civil Procedure Rules, Mr Okinyi submitted that the respondent violated the said Rules since there is no record to show that the appellant was served with a notice for the other hearing date. He relied the case of Philip Chemwolo & another v Augustine Kubede (1982-88) KAR 103 and Belinda Murai & others v Amoi Wainaina [1978] and submitted that the mistake made in the lower Court is excusable and should be considered in the interest of justice.

9. It was stated that the appellant is a stage 4 cancer patient and coupled with his advanced age, he cannot have the fitness, sobriety of mind that is expected of a healthy litigant. In addition, he stated that the appellant resides in Taita Taveta while his Advocate was in Mombasa hence he could only visit his Advocate’s chambers as often as his condition permitted him. He submitted that the foregoing notwithstanding, the appellant made calls to his Advocate severally, but he assured him that he could not be found liable since he had already disposed of the vehicle before the accident occurred. He contended that the appellant was never advised of any dates when he was required in Court and failed to attend Court.

10. He relied on the case of Shah v Mbogo [1969] EA 116 and stated that the law is to the effect that exercise of discretion in favour of a litigant should only be denied if it can be shown that a litigant deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice. He stated that in this case, no evidence was led to that extent and in any event, it was in the appellant’s interest to appear in Court and be exonerated.

11. Mr Okinyi relied on the case of Pithon Waweru Maina v Thuka Mugiria [1983] eKLR and United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] EA 898 and submitted that the Trial Magistrate failed to consider that the appellant had a plausible defence and was misdirected in his exercise of judicial discretion. In addition, Counsel stated that the circumstances under which liability was attributed to the appellant being a common occurrence in this country where many people purchase vehicles but fail to transfer, hence liability is directed to an innocent party is a matter of general public importance hence a further Court consideration by way of a fresh hearing was warranted.

12. Ms Waithera, learned Counsel for the respondent submitted that the appellant never filed witness statements or documents that he intended to rely on at the trial of the primary suit to demonstrate that he had a triable issue in his defence, despite having been accorded an opportunity to comply with pre-trial requirements. She further submitted that the appellant was duly served at every stage with mention and hearing notices that were received and stamped by his Advocate on record, and as such, the learned Magistrate correctly found such a mistake as inexcusable.

13. It was submitted by Ms Waithera that the appellant never personally appeared in Court and that the Trial Magistrate correctly found that the appellant had a personal and legal duty to act diligently and find out from his Counsel from time to time the progress of his case. This Court was invited to consider the Trial Magistrate’s ruling where he relied on the case of Loans Limited v Susan Wanjiru Nairobi Milimani HCC 397/02 that a case belongs to a litigant and not an Advocate. He contended that not all acts and omissions of a Counsel can be excused taking into account that a litigant whether represented or not should always rise to the occasion and fast track the hearing and disposal of one’s suit.

14. Ms Waithera cited the case of Josephine Lunde Matheka v Gladys Muli [2018] eKLR and submitted that in the event that the appellant was genuinely offended by his former Advocates as he alleges, he has recourse elsewhere but not in this Court. She further submitted that the powers and jurisdiction of this Court should not be exercised to assist a party who seeks to frustrate the respondent’s quest to reaping the fruits of his lawful judgment. The respondent’s Counsel relied on the case of Bilha Ngonyo v Kembu Farm Limited & another [2018] eKLR and submitted that the Trial Court correctly exercised its judicial discretion in dismissing the appellant’s application dated May 10, 2019.

ANALYSIS AND DETERMINATION. 15. This Court being the 1st appellate Court, has a duty to analyze and re-evaluate the evidence adduced before the lower Court and reach its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. See Williamsons Diamonds Ltd v Brown (1970) EA 1 and Ramji Ratna and Company Limited vs Wood Products (Kenya) Limited Civil Appeal No 117 of 2001.

16. The application before the lower Court was anchored on the provisions of Order 12 Rule 7 of the Civil Procedure Rules, 2010 which provides that where under the said 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.

17. The lower Court that was seized of the application in issue had the discretion to either set aside the judgment or not. The said discretion was however to be exercised judiciously to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error. It was not meant to assist the appellant, if he had deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See the case of Shah vs Mbogo & another (supra).

18. In the lower Court, the appellant’s main ground for praying for the setting aside of the judgment is that his former Advocates Moses Mwakisha and Company Advocates never informed him when the matter came up for hearing before the Trial Court nor of the judgment, until he was served with a notice to show cause that he visited his former Advocates’ chambers to enquire about the issue, and he learnt that they had failed to attend all the hearings.The hearing before the Trial Court proceeded exparte as against the appellant and consequently, the said Court was deprived of evidence that would absolve him from liability. The appellant contended that mistakes of an Advocate should not be visited on an innocent victim such as himself.

19. The respondent on the other hand submitted that the appellant was duly represented before the Trial Court, and all the requisite hearing notices were served upon the said Advocate who failed to attend Court out of negligence. He submitted that the appellant had a duty to follow up on the progress of his matter from his Advocate, which duty the appellant failed to fulfil, thus the alleged mistake of his former Advocates is inexcusable.

20. In considering whether or not to set aside a judgement, the Court has to consider the matter in light of all the facts and circumstances both prior and subsequent, and if the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, and if necessary, upon terms to be imposed. In this appeal, it is evident from the record that hearing of the main suit before the Trial Court proceeded on August 1, 2018. The appellant contended that in as much as his former Advocates on record failed to attend Court on the said date despite being served with a hearing notice on May 18, 2018, the hearing was adjourned and another hearing date set for August 10, 2018 when Counsel for the 2nd and 3rd defendants cross-examined the respondent’s witnesses. He asserted that he ought to have been served with a hearing notice for August 10, 2018 which was not done.

21. A perusal of the Record of Appeal reveals that the appellant’s former Advocates on record were served with a hearing notice for August 1, 2018 on May 18, 2018. This can be seen from the hearing notice dated May 17, 2018 found at page 82 of the Record of Appeal. It further reveals that the hearing slated for August 1, 2018 proceeded in the absence of the appellant and his Advocate however, the respondent called his witnesses, who were cross-examined by the 2nd and 3rd defendant’s Counsel and he closed his case. Thereafter, the 2nd and 3rd defendants indicated that they would not be calling any witnesses and they also closed their case. Subsequently, the Trial Court gave a mention date for September 12, 2018 for submissions. I agree with Counsel for the respondent that the appellant had a duty to follow up on his case.

22. The appellant had deposed in his affidavit in support of his application in the lower Court that he is a stage 4 cancer patient, which when coupled with his advanced age, reduces his fitness and sobriety of mind that is expected of a healthy litigant. He averred that he resides in Taita Taveta while his Advocate was in Mombasa thus he could only visit his Advocate’s chambers as often as his condition permitted him to. He stated that despite his condition, he made calls to his Advocate who on several occasions assured him that he could not be found liable since he had already disposed of the vehicle before the accident occurred.

23. I find the appellant’s explanation on how he followed up on the progress of his matter from his former Advocates on record plausible because of his health status and his advanced age. In addition, this Court finds that the appellant’s failure to attend Court and defend the suit before the Trial Court was as a result of failure by his former Advocates on record to inform him each and every time the suit was coming up for mention or hearing and even when judgment was being delivered. It can be easily concluded that failure to defend the suit was as a result of the mistake of the appellant’s former Advocates on record.

24. The respondent and the Trial Magistrate in his ruling both came to the conclusion that in the event the appellant was genuinely offended by his former Advocates as he alleges, he has recourse elsewhere but not in this Court. This Court has to determine whether the mistake by the appellant’s former Advocates on record is excusable and/or whether the appellant should suffer the consequences of the said mistake despite the fact that he had no role to play in it. The Court of Appeal in Murai v Wainaina (No 4) [1982] KLR 38 when addressing the issue of mistakes by Counsel stated as follows-“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”

25. The ruling by the Trial Magistrate reveals that he did not consider the appellant’s health status in arriving at his decision. This Court therefore finds that the Trial Magistrate did not exercise his discretion properly in finding that the appellant failed in his duty to find out from his Advocates the progress of his matter. I am guided by the holding in CMC Holdings Ltd v Nzioki [2004] KLR 173, where the Court of Appeal held as follows-“…In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate

26. It is trite that a regular judgement would not usually be set aside unless the Court is satisfied that there is a defence on merit. It is not disputed that the respondent has a regular judgment that was delivered by the Trial Court on February 7, 2020. In an application to set aside the judgment, the Court has to determine whether an applicant has a defence that raises triable issues. In CMC Holdings Ltd v Nzioki (supra), the Court of Appeal when dealing with an application to set aside judgment held as hereunder-“….What the Trial Court should have done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.”

27. I have gone through the appellant’s statement of defence and found that he disputes ownership of motor vehicle registration No KAG 854H as of June 20, 2007 having disposed of the same to the 2nd defendant prior to that date. I am of the considered view that this boils down to the issue of liability. This Court therefore finds that the appellant’s defence raises triable issues that should be determined on merit by giving him an opportunity to adduce evidence. In reaching this conclusion, I am persuaded by the Court’s finding in Wachira Karani v Bildad Wachira [2016] eKLR where it was held that-“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”

28. The primary duty of the Court is to do justice. This Court invokes its inherent powers under the provisions of Section 3A of the Civil Procedure Act.

29. In the end, I find the appeal herein is merited and the same is allowed in the following terms-i.That this Court hereby sets aside the ruling by Hon F Kyambia, SPM, delivered on February 7, 2020 in its entirety;ii.That this Court sets aside the judgment delivered in the lower Court on December 2, 2018 in its entirety;iii.That the appellant shall pay the respondent thrown away costs of Kshs 20,000/= within twenty-one (21) days from the date of this judgment;iv.That in default of clause (iii) hereinabove, the orders herein shall be vacated and the appeal shall stand dismissed; andv.That the lower Court case file shall be placed before the Hon Chief Magistrate for directions within twenty-one (21) days from today for fixing a hearing date on priority basis due to the age of the matter.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 4TH DAY OF NOVEMBER, 2022. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr Okenji for the appellantNo appearance for the respondentMr Oliver Musundi – Court Assistant.