[1997] KEHC 28 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 3933 of 1989

MILLICENT PERPETUA ATIENO WANDIGA AND ANOTHER ..........PLAINTIFF

Versus

JOHN CHEGE ........................................................................................... DEFENDANT

RULING

By this application filed on 13th May, 1996, thedefendant, hereafter called "the applicant", seeks orders as follows -

"1. That this Honorable Court be pleased to reviewand/or vary the orders made on 22nd made on 22nd September, 1992. 2. That the applicant be granted leave to defend thesuit herein." The application is grounded on an affidavit in which itis deponed that the orders had been entered against him in hisabsence and that he had a good defence to the suit.

The defendants however oppose the application on thegrounds inter alia that the judgment had been properly enteredand that the applicant had not made full disclosure to the.court. In a detailed replying affidavit the respondents counsel deponed that the applicant had since been adjudged abankrupt and had no right to bring the current application. Healso stated that the defence had been properly entered as theapplicant had failed to provide requested particulars. He didnot however disclose that the bankruptcy order had since beenstayed pending as application to set it aside as it was alsoobtained ex parte.

By way of background information, it appears that thedefendant used to own same premises known as L.E. No.209/8292/37 Nairobi. By an agreement for sale made onunspecified date (agreement not dated) but. said to have beensigned on 2nd or 3rd November, 1988, the applicant agreed tosell the said premises to the defendants for Shs. 740,000/ = .The date of completion was stated to be 15th December, 1988 inthe agreement which agreement was made under the Law Societyconditions of sale. A sum of Shs, 100,000/= was paid to theadvocates acting for both parties, Messrs. Hayanga and Co.Advocates, which sum was to be paid to the chargees of thepremises, Messrs. H.F.C.K Ltd. but the said advocates appear tohave paid some to the applicant on 21st November, 1988.

After the above, Messrs. Hayanga and Co. Advocates paida sum of Shs. 23,086. 20 to discharge the property from theH.F.C.K. Ltd. loan from a sum deposited for that purpose by therespondents herein. Victoria Finance Co. Ltd. also agreed topay a sum of Shs. 450,000/= on behalf of the respondents on 28th November, 1988 but the applicant apparently changed hismind and took the titles from the H.F.C K. Ltd. and refused torelease to the parties mutual advocate as the respondents hadnot deposited the balance of the purchase price by 15thDecember, 1988. After some futile correspondence to theH.F.C.K. Ltd. and the applicant, the respondents realised thatthe applicant did not intend to sell the premises to them andinstructed Messrs. Ongeche and Co. Advocates, to act for them.

Messrs. Ongeche and Co. Advocates on 11th August, 1989lodged a caveat against the title. On 26/1/90 however theRegistrar of Titles informed the respondents that he intendedto remove the caveat if no court order is obtained within 45days. Meanwhile the respondents had filed the current suit on14th day of September, 1989 for specific performance or refundof deposit, made to the applicant of Shs. 123,000/= plusinterest. On 18th September, 1990 the plaint was amended toexclude a claim for Shs. 123,000/= but in its place put a claimfor Shs. 100,000/= plus a further sum of Shs. 120,000/= paid toMessrs. Hayanga and Co. Advocates as the applicants advocate ofwhich sum Shs. 23,000/= was used to discharge the charge andthe balance apparently retained by the advocate and claimedloss of use of the moneys, as well as general damages. On 14thOctober, 1990, the applicant filed a defence and counterclaimto the respondents claim. Further on 11th October, 1990, longafter the period of 45 days had expired and Registrar entitledto remove the caveat the respondents obtained an orderextending the caveat.

While the suit was pending, the respondent obtained anorder for particulars, an application for which had been servedby registered post to a box number said to belong to theapplicant’s advocate who filed the defence, although an order tothat effect had not been obtained as the defence showed aphysical address. When the application for particulars came upfor hearing on 23/10/91 the applicant's advocate apparentlyentered a consent order to the effect that the particularswould be supplied within 21 days from that date and that indefault, the defence would be struck out. The particulars werenot supplied within the agreed time and the plaintiff set downthe suit for formal proof without applying to have the defenceformally struck out. On the date of the formal proof, of whichthe applicants counsel was notified through registered post,without an order to that effect the applicants counselwithdrew from the suit and the formal proof proceeded withoutthe presence of the said counsel on the 22nd September, 1992,and the respondents were awarded damages of Shs. 797,766/=.The decree does not show if any evidence was heard nor can thisfact be verified as the original file cannot be found to dateand it was not until 21st October, 1994 that the file wasreconstructed and the respondents proceeded to tax costs on22/11/95 and matter brought to the attention of the applicantleading to the filing of this application on 13th May, 1996 bythe current advocates of the applicant who filed their noticeof appointment on 19th March, 1996.

The determination of this matter has been seriouslyhampered by the non-availability of the original file orproceedings. I will nevertheless endeavour to do as muchjustice as possible based on the imperfect material nowavailable to me. Before I look at the merits of the matter Iwish to recall that in dealing with such issues, the mainconsideration is whether the judgment was rightly entered. Ifnot then the applicant would be entitled ex debito justified tohave the judgment set aside. On the other hand, if thejudgment was properly entered, then before the matter isreviewed or set aside, it must be shown that the setting asidewould serve a purpose and whether or not the defendants failureto ensure that ex parte orders are not entered was deliberateor with a view to defeating the course of justice. In therespondents ground of opposition it was also contended that theapplicant had no locus standi as a receiving order had beenmade against him. In support of this contention Mr. Fraser forthe respondents relied on the case of Heath vs. Tang andAnother (1993) 1 WLR 1421 in which it was held by the Court ofAppeal in England on the strength that a bankrupt's estatevests in a receiver. Although on principle this may be so Ifind that in the present case as the receiving order has sincebeen stayed, on 29th December, 1996 the applicant still haslocus standing.

Was the judgment herein entered regularly? As alreadystated, there was a valid defence, on record in this suit. It was never formally struck out before the alleged formal proofwas held by the court. The only order the applicant had wasthat the applicant had to provide particulars within 21 days onthe threat of having his defence struck out if the particularsare not. so provided. It also appears that no evidence wastaken of the loss suffered by the respondents. If that wereso, such a colossal figure of Shs. 797,000/= could not. haveeasily been justified. In my ruling therefore the respondentscould not proceed with formal proof; they should have first hada formal order striking out the defence before proceeding withthe formal proof. I therefore find that the judgment hereinwas irregularly entered as there was still a valid defence onrecord. The order clearly shows an error apparent on recordwhich brings the matter within the purview of O. 44 Rule 1 ofthe Civil procedure Rules.

In case, I am wrong in my above conclusion, I nowexamine the merits of the matter if the formal proof were setaside. In this regard it is observed that the agreementbetween the parties was to be completed by 15th December,1988. By that date the respondents were not in a position topay nor had they paid the balance of the purchase price.Consequently it could be argued that the respondents had nothonored the agreement as it was not in the contemplation ofthe parties that the balance would be by a loan. The defencealso raises a counterclaim. If the matter were therefore to proceed to hearing the court would be able to determine who ofthe warring parties is entitled to judgment instead of shuttingout the parties from the seat of justice.

As regards the manner in which the applicant came tohave himself shut out from the seat of justice, the largerblame appears to lie on the applicants lawyers in failing tohonor the consent order they had entered into. He is also toblame in not advising the client that the fact that the suitpremises had been sold to a third party did not absolve, himfrom liability. I therefore find that as there is noindication that the applicant participated in this delay, Iwould be loathe to visit the sins of the counsel on an innocentclient.

There is of course the issue of sale of the suitpremises despite extension of the caveat by the court. It ishowever observed that the notice for removal of caveat wasgiven way back on 26/6/1990 and the application for extensionwas made on 21/8/90, after the 45 days had expired allowing fornormal time allowed for service of registered matters inNairobi, and an order for extension was not made until 29thAugust, 1990, by which time the Registrar of Titles could haverightly removed the caveat as the 45 days had elapsed. It istherefore not clear if the applicant in any way influenced theremoval of the caveat regularly or irregularly.

The blame on the delay in bringing the current-application after getting to know of the mater “herein would also appear to lie largely on the choice of the legaladvisors. Although the current advocate was instructed wayback in March 1996 action was not taken until May, 1996 when this application was filed. As it is not usual for the courts to visit the sins of counsel on the client, I cannot say that this was done with a view to delaying the cause of justice on the part of the applicant. In the result and for the reasons canvassed hereinabove it is my ruling that the judgment herein through a default clause and/or formal proof was irregularly obtained and/or that the setting aside would enable the court to determine some arguable points raised by the defence. I hereby therefore set aside the courts orders entered into on 22nd September, 1992. As the confusion herein was caused by the laxity of theapplicant's original counsel in not complying with a consent order, I make no order as to costs. I direct that the matter do now proceed to determination of the issue relating to whether the default to supply particulars should render the defence struck out on an application to be presented by the respondents in court. Orders accordingly.

Dated at Nairobi this 28th day of February, 1997.

G. P. MBITO

JUDGE