[2020] KEHC 863 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 343 OF 2017

ML [suing through next friend]TM.................................APPELLANT

VERSUS

NYAGA BASIL NTWIGA............................................RESPONDENT

JUDGMENT

1. This appeal arises from the ruling and order of Hon. G. Mmasi dated 8th June 2017 in which the learned trial magistrate dismissed the appellant’s application for review as sought in the Notice of Motion dated 13th February 2017.

2. The undisputed facts leading to the appeal are clear and straight forward. The appellant instituted suit against the respondent on behalf of his minor son who had been injured in a road accident whose occurrence was blamed on the respondent or his agent’s negligence.

3. Upon being served with summons, the respondent failed to enter appearance or file a defence within the stipulated time. Interlocutory judgment was then entered in favour of the appellant against the respondent which judgment was confirmed after suit proceeded for formal proof.

4. The trial court’s record shows that when the appellant initiated execution proceedings, the respondent filed a Notice of Motion dated 22nd December 2015 seeking the following orders:

i. The application be certified urgent and the same heard ex parte in the first instance.

ii. That the Honourable Court gives leave to the firm of Matwetwe & Company Advocates to come on record for the applicant/defendant.

iii. That this Honourable Court be pleased to order stay of execution pending the hearing and determination of this application.

iv. That this Honourable Court to declare the proceedings invalid, illegal, contempt of court and hence quash them.

v. That costs be provided for.

5. After hearing both parties, the learned trial magistrate delivered her ruling on 14th July 2016 in which she held as follows:

“I find that the application is viable and has merit. I herewith grant prayer 2 for stay of execution and the same is herewith issued pending hearing and determination of the suit. In regard to the prayer to declare the proceedings invalid, illegal and contempt of court, I decline to grant the same as the counsel knows which court is seized with jurisdiction in regard to contempt proceedings.”

(See typed proceedings in the trial court’s original file.)

6. The appellant was aggrieved by the trial court’s decision and sought a review of the same in the Notice of Motion dated 13th February 2017. In her ruling dated 8th June 2017, the learned trial magistrate dismissed the application on grounds that it was defective solely because the provisions of the Civil Procedure ActorRules on which the motion was premised had not been disclosed. This is the ruling which is the subject of this appeal.

7. In his memorandum of appeal filed on 7th July 2017, the appellant advanced three grounds in which he faulted the trial court for finding that failure to cite the particular provision of the law on which his application was anchored disentitled him to the orders sought and for dismissing the motion on a technicality. He prayed that the orders made on 8th June 2017 be set aside and that his application dated 13th February 2017 be allowed as prayed.

8. The court record shows that though being served numerous times with mention and hearing notices on the dates the appeal was fixed for either mention for directions or for hearing, the respondent did not attend the court on any date. On application by the appellant, the court gave directions that the appeal be prosecuted by way of written submissions. The appellant filed his written submissions dated 16th July 2020 but the respondent failed to file his submissions despite being served with court’s directions directing him to do so on or before 28th September 2020.

9. This is a first appeal to the High Court. I am alive to my duty as the first appellate court which is to re-evaluate the evidence or material presented before the trial court to arrive at my own independent conclusions regarding the validity or otherwise of the trial court’s decision. See: Selle & Another V Associated Motor Boat Company Limited & Others, [1968] EA 123.

10. I have considered the grounds of appeal, the record of the trial court and the appellant’s written submissions. I have also read the impugned ruling.

I agree with the appellant’s submissions that the learned trial magistrate dismissed his application for review on grounds which amounted to a mere technicality notwithstanding clear provisions of the law which prohibited courts from taking such a course of action. The learned trial magistrate does not appear to have been aware of Order 51 Rule 10of theCivil Procedure Rules which states as follows:

“(1) Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

(2) No application shall be defeated on a technicality or for want of form that does not affect the substance of the application.”

11. The learned trial magistrate ought to have addressed the prayers sought in the application which were clearly set out instead of preoccupying herself with technicalities which went to the form as opposed to the substance of the application.

12. In making the impugned decision, the learned trial magistrate erred in disregarding the dictates of the overriding objective in the adjudication of civil disputes as stipulated in Sections 1Aand1B of the Civil Procedure Act and the provision of Article 159 (2) (d)of theConstitution which enjoins courts not to sacrifice substantive justice at the altar of technical or procedural irregularities.

13. Had the learned trial magistrate addressed her mind to the substance of the application, I am positive that she would have found merit in the appellant’s Notice of Motion dated 13th February 2017 considering that there were obvious and fundamental errors in her ruling dated 14th July 2016. It is noteworthy that in her ruling, she allowed prayer 2 of the motion which had only sought interim stay of execution pending hearing of the motion inter partes which prayer was obviously spent by the time she was making her decision.

14. Secondly, the learned trial magistrate directed that the orders of stay of execution should remain in force pending hearing and determination of the suit ignoring the fact that the suit had been heard and finally determined before the respondent’s application was filed. These are errors which were apparent on the face of the trial court’s record and they entitled the appellant to the orders of review sought in his Notice of Motion dated 13th February 2017. The trial court ought to have considered the merits or otherwise of the motion instead of dismissing it on a technicality. After my independent analysis of the application and having read the entire court record, I am satisfied that the application was merited and ought to have been allowed.

15. For all the foregoing reasons, I find merit in this appeal and it is hereby allowed as prayed. As the appeal was necessitated by errors made by the trial court which cannot be blamed on any party, the appellant will bear his own costs of the appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this 3rd December 2020.

C. W. GITHUA

JUDGE

In the presence of:

Mr. Maina for the appellant

No appearance for the respondent

Ms Mwinzi: Court Assistant