[2025] KEHC 371 (KLR)

Matonyi v Kaveke (Civil Appeal E547 of 2018) [2025] KEHC 371 (KLR) (Civ) (23 January 2025) (Judgment)

Neutral citation: [2025] KEHC 371 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E547 of 2018

LP Kassan, J

January 23, 2025

Between

Benson Kamba Matonyi

Appellant

and

William Kaveke

Respondent

(Being an appeal against the ruling and order of Honourable E. Wanjala (Ms.), SPM, delivered on 18th July, 2018 in Nairobi CMCC No. 1922 “B” of 2003)

Judgment

1. This appeal emanates from the ruling delivered on 18th July, 2018 in CMCC No. 1922 “B” of 2003 (the suit). The background facts are that Benson Kamba Matonyi (hereafter the Appellant) lodged the suit by way of the plaint dated 28th February, 2003 and amended on 18th June, 2010 (the amended plaint) seeking general and special damages in the sum of Kshs. 108,881. 05 plus costs of the suit and interest thereon against William Kaveke (hereafter the Respondent) arising out of a claim for negligence and in respect of injuries sustained in a road traffic accident.

2. Upon the request of the Appellant filed on 9th November, 2007, the lower court entered an interlocutory judgment against the Respondent on 15th November, 2007 for his failure to enter appearance and file a statement of defence. Consequently, the matter proceeded for formal proof, with the Appellant’s testimony.

3. Going by the record, the Appellant equally intended to call a doctor as an expert witness, but which doctor did not attend court. Subsequently, no further action took place in the suit as from 3rd December, 2012 thereby resulting in its dismissal by the lower court suo motu on 15th April, 2014 for want of prosecution, pursuant to Order 17, Rule 2(1) of the Civil Procedure Rules.

4. The record shows that the Appellant moved the lower court by way of an ex parte application dated 27th July, 2017 seeking reinstatement of the suit. Upon hearing thereof, the lower court vide the ruling delivered on 24th November, 2017 allowed the said application on the condition that the Appellant prosecutes the suit within a period of three (3) months, failing which it would stand dismissed.

5. The record further shows that when the Appellant’s counsel attended court on 12th March, 2018 she indicated to the lower court that she was not ready to proceed with the hearing. Upon considering the above sentiments, the court deemed the suit dismissed, pursuant to the aforesaid ruling.

6. The Appellant thereafter filed a separate ex parte Notice of Motion dated 19th March, 2018 (the Motion) seeking an order for reinstatement of the suit and a further order for an extension of time to enable the Appellant comply with the order arising out of the ruling delivered on 24th November, 2017.

7. Upon hearing the Motion, the learned trial Magistrate by way of the ruling delivered on 18th July, 2018 declined to set aside her earlier order and therefore dismissed the said Motion, thus provoking the instant appeal which was brought through the memorandum of appeal dated 15th January, 2020 based on the following grounds:1. The Learned Magistrate erred in dismissing the Appellant’s suit against the overwhelming weight of evidence in support of this suit.2. The Learned Magistrate erred in law and in fact in giving an order when no ruling or judgment had been made.3. The Learned Magistrate erred in law and in fact in giving an order because the court was unwilling to hear the Application because it was not the first time it had come up.4. The Learned Magistrate erred in law and in fact in failing to consider the circumstances which had occurred as the Application was being presented, as the date set was out of the Appellant’s control but on the complete control of the court using the court diary.5. The Learned Magistrate erred in law and in fact in being overly biased against the Appellants as they were not given a chance to be heard.6. Any other ground(s) that may arise during the Hearing.” (sic)

8. The record shows that the appeal proceeded ex parte. Similar to the suit, the Respondent did not participate in the said proceedings at all.

9. That said, the appeal was canvassed by way of written submissions, which the court has considered together with the original record, the record of appeal as well as the supplementary record of appeal. It is trite law that the duty of this court as a first appellate court is to re-evaluate the evidence adduced in the lower court and to draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Kenya Ports Authority v Kusthon (Kenya) Limited (2000) 2EA 212, Peters v Sunday Post Ltd (1958) EA 424; Selle and Anor. v Associated Motor Boat Co. Ltd and Others (1968) EA 123; William Diamonds Ltd v Brown [1970] EA 11 and Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278.

10. The Court of Appeal stated in Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR that:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.

11. To be determined in the present appeal is the fundamental question whether the trial court acted correctly by declining to reinstate the Appellant’s suit. Consequently, the court will address the five (5) substantive grounds of appeal contemporaneously.

12. As earlier mentioned, the suit proceeded for formal proof and was part heard as at the time of its initial dismissal for want of prosecution, on 15th April, 2014. Upon re-examination of the record, it is apparent that over three (3) years later, the Appellant through his counsel, moved the lower court by way of the application dated 27th July, 2017 seeking reinstatement of the suit. Upon hearing thereof, the learned trial magistrate in her initial ruling delivered on 24th November, 2017 agreed to set aside the dismissal order conditional upon the Appellant prosecuting his case within three (3) months thereof.

13. As seen from the lower court record, the suit was consequently slated for hearing on 12th March, 2018 on which date the Appellant’s counsel sought a further adjournment for the reason that the original medical report being relied on could not be traced. However, the lower court rendered the suit as dismissed pursuant to the ruling of 24th November, 2017.

14. Subsequently, the Appellant filed the Motion seeking reinstatement of the suit and an extension of time for compliance with the ruling and order of 24th November, 2017. The said Motion stood supported by the grounds set out therein and the supporting affidavit of advocate Judy N. Muriithi, who stated in sum, that the Appellant was unable to comply with the ruling and order of 24th November, 2017 since no directions were given for the suit to be heard on priority basis and further, that the earliest hearing date available was 12th March, 2018 on which date the suit was rendered dismissed pursuant to the aforesaid order. The advocate further stated that the Appellant remains keen on prosecuting his suit and therefore urged the lower court to exercise its discretion favourably.

15. In ultimately dismissing the Motion, the learned trial magistrate reasoned that the same lacks merit taking into account the age of the suit coupled with the absence of any reasonable explanation by the Appellant for his failure in prosecuting the suit even after having been granted an opportunity to do so. It is clear that the Appellant now seeks to have the impugned ruling and order set aside, by way of the present appeal.

16. The long-standing legal principle has been that the grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, such discretion must be exercised judicially and justly. The rationale for the discretion to set aside as conferred on 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-part 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.”

17. Upon re-examination of the pleadings and material forming part of the lower court record, while it is not disputed that the suit was part heard as at the time of its initial dismissal, it is apparent that prior to the initial dismissal order made on 15th April, 2014 no progressive action had taken place in the suit since 3rd December, 2012. Nevertheless, following the Appellant’s application for reinstatement, the trial court vide the ruling and order made on 24th November, 2017 granted him an opportunity to prosecute his suit but gave strict timelines for compliance.

18. Upon further re-examination of the pleadings and material forming part of the lower court record and as earlier mentioned, the Appellant despite being granted a further opportunity, failed to comply with the timelines for prosecution stipulated in the order of 24th November, 2017.

19. Upon consideration of the foregoing factors, the court concurs with the reasoning by the learned trial magistrate, that no proper reasons had been availed to explain the non-compliance and to warrant yet another extension of time, especially given the age of the suit. The court is of the view that the Appellant had every reasonable opportunity to prosecute the suit within reasonable timelines, but did not. Furthermore, the court finds that the primary reason for non-compliance with the order of 24th November, 2017 is unsatisfactory. No new or credible reasons were given to explain the non-compliance and/or to demonstrate any diligent steps taken by the Appellant in an attempt at compliance with the aforesaid order. Similarly, the Appellant did not tender any new or credible material to warrant a reinstatement of the suit.

20. Ultimately, the court is satisfied; upon taking into account all the foregoing circumstances coupled with the timelines stipulated by the trial court as well as the principle that extension of time is a matter that lies with the court’s discretion rather than an entitlement of a party; that the learned trial Magistrate exercised her discretion in a reasonable and unbiased manner upon considering all relevant factors, and arrived at a sound decision in the circumstances. From a reading of the impugned ruling, it is also apparent that reasons for declining to reinstate the suit were set out. The court sees no reason to interfere with the ruling in question.

21. The upshot therefore is that the appeal is found to be lacking in merit and it is hereby dismissed with no order on costs. Consequently, the ruling delivered on 18th July, 2018 in CMCC No. 1922 “B” of 2003 is hereby upheld.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JANUARY 2025. HON. L. KASSANJUDGEIn the presence of:Ireri holding brief Mureithi for the AppellantNo appearance for RespondentGuyo - Court Assistant