[2024] KEHC 15950 (KLR)

Mukhwana v Family Bank Limited & another (Civil Appeal 43 of 2020) [2024] KEHC 15950 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 15950 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 43 of 2020

PJO Otieno, J

December 18, 2024

Between

Mohammed Mukhwana

Appellant

and

Family Bank Limited

1st Respondent

Pawaba Auctioneers

2nd Respondent

(Being an appeal from the Judgment of Hon. T.A. Odera (SPM) in Mumias SPMC Civil Case No. 145 of 2018 delivered on 25th August 2020)

Judgment

Background of the Appeal 1. By way of a plaint dated 27th September, 2018, the appellant moved the lower court to stop the respondents from auctioning his parcel of land known as LR No. MUMIAS MUNICIPALITY BLOCK/3/40 which property he had offered as collateral for a loan facility of Kshs. 12,000,000/- advanced to him by the 1st respondent. When the matter came up for hearing on 3/12/2019, counsel for the appellant indicated that she was not ready to proceed and that she had filed an application dated 27/11/2019 giving a proposal on how to resettle the loan balance. That application was rejected by the 1st respondent’s counsel and the court ruled that the matter proceeds at 10:30 AM. When the matter was called at the appointed time, the appellants counsel failed to attend resulting in the appeal being dismissed for non-attendance.

2. The appellant then filed an application dated 18/2/2020 seeking to have the orders dismissing his suit vacated which application was heard on the merits and dismissed by the court on the basis that there was a deliberate scheme by the appellant to defeat justice.

3. Aggrieved with the decision of the trial court, the appellant lodged a memorandum of appeal dated 30th August, 2020 premised on the grounds that;a.The learned trial magistrate erred in law and in fact by finding and holding that the appellant was not entitled to an equitable remedy as per the law.b.The learned trial magistrate erred in law and in fact by making a finding which finding was against the evidence that was tendered in the appellant’s pleadings thereby occasioning miscarriage of justice.c.The learned trial magistrate erred in law and in fact by failing to appreciate that he was not represented on the material day hence failing to accord the appellant an opportunity to be heard as per the rules of natural justice.d.The learned trial magistrate erred in law and in fact by dismissing the appellant’s application dated 18th February, 2020. e.The learned trial magistrate erred in law and in fact by failing to put into consideration the relevant principles and factors before arriving into her decision.f.The learned trial magistrate erred in law and in fact by failing to appreciate that the appellant has a justifiable claim which would be remedied upon om being heard.g.The appellant was desirous of dispensing with this suit within the most reasonable time hence this appeal.h.That it is in the interest of justice that this appeal be heard on merit.

4. On the above grounds, the appellant prays that the ruling of the trial court be set aside and his claim be allowed/reinstated to be heard on the merits.

5. The appeal was directed to be canvassed by way of written submissions which have been filed by both sides.

Appellant’s Submissions 6. It is the submission by the appellant that his failure to attend court on diverse dates of September 2018 and 2020 was not deliberate but that it was occasioned by his former advocate and that the wrongs of his former counsel should not be a roadblock to his quest for justice. It is added that it would be unfair to pin responsibility on the client for non-compliance with the rules by his counsel. The decision in the case of Itute Ngui & another v Isumail Mwakavi Mwendwa Civil Application No. Nairobi 166 of 1997 is cited for that proposition. He then submits that he has a strong and meritorious case that calls for the suit to be reinstated.

7. He further argues that his suit raises triable issues which ought to be tried and cites the case of Jackson Ngechu Kimotho – Vs – Equity Bank Ltd NRB HCC 587/2011 where the court observed that if a pleading raises a triable issue, even if at the end of the day it may not succeed, the suit ought to go on trial since in civil litigation as opposed to criminal trials there is no provision, for holding mini trials or a trial within a trial. International instruments and foreign decision in addition to local decisions were cited on the importance of the right to be heard the duty of an advocate to the court.

8. In conclusion he submits that even though the respondents filed their defence and alleged to have followed the correct and due procedure in service of demand and notification of sale and valuation, it was still desirable that the same ought to have been subjected to evidentiary proof.

1st Respondent’s Submissions 9. It is the submission of the respondent that the appellant moved the lower court vide a certificate of urgency on 27/9/2018 but on the date scheduled failed to appear when the matter was slated for hearing resulting in the application being dismissed. The appellant again filed a similar application which was set down for hearing on 2/7/2019 during which day the appellant again failed to attend resulting in the application and suit being dismissed. The appellant then sought for reinstatement of the suit which order was granted and a hearing date of 3/12/2019 given during which time advocate for the appellant and the 1st respondent were present and time was allocated for hearing during which time the appellant failed to appear resulting in the suit being dismissed.

10. It is thus argued that the appellant has not been keen to prosecute his case because even in this appeal the appellant took 2 years after the appeal was admitted to place it before court for directions. They argue that the appellant cannot purely place blame on his counsels since a case belongs to a litigant and not his advocate and that a court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant by failure to attend court. In that regard the decisions in Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, Bilha Ngonyo vs Kembu Farm (2018) eKLR and Elosy Murugi Nyaga vs Tharaka Nithi County Government(2020)e KLR among others were cited on the law that the suit belongs to the litigant and not counsel, that a court should not allow a litigant to joyride its processes to the prejudice of other litigants and that one must explain the default to the satisfaction of the court.

11. It is further contended and revealed that the 1st respondent had in fact sold the suit property by way of a public auction but the appellant continues to enjoy peaceful possession of the property while his outstanding balance continues to accrue interest without any attempt to pay the debt.

12. They lastly stressed that no prejudice would be occasioned to the appellant since he already admitted to defaulting in repaying the loan facility owed to them and was willing to pay in installments.

Issues, Analysis and Determination 13. Th court has duly considered the grounds of appeal, the proceedings of the lower court and the submissions by the parties and the only issue that arises for my determination is whether the trial court made an error in holding that the appellant had not merited the courts discretion to set aside a default order.

14. The principles and object of justice applicable in setting aside a default order or judgment were settled way back in Shah –vs- Mbogo(1967) EA 166 when the court observed:-“This discretion to set aside an ex –parte Judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

15. It is common ground that the appellant obtained a loan facility of Kshs. 12,000,000/- from the 1st respondent and gave his property known as LR No. MUMIAS MUNICIPALITY BLOCK/3/40 (hereinafter referred to as “the suit property”) as collateral. It is equally common ground that the appellant defaulted in servicing his loan and the 1st respondent invoked its statutory power of sale by way of public auction of the property to recover the monies owed. To appreciate how the applicable principles relate with this matter, it is important to set out the history as captured in the proceedings.

16. By way of a notice of motion dated 27/9/2018, file with the plaint, the appellant sought for injunctive orders, ex parte, at the lower court to stop the auction and sale which orders were denied and the matter was set down for inter partes hearing on 9/10/2018. On the hearing date an interim order of injunction was granted and the parties were given an interpartes hearing date for the application on the 23/10/2018 when the appellant failed to attend court and the application was dismissed for non-attendance.

17. The appellant again filed another application dated 13/2/2019 for injunctive orders to stop the 1st respondent from selling the suit property. That application was heard on the merits and temporary orders of injunction given on 05. 04. 2019 pending the determination of the suit and on terms that the suit be fixed for hearing. The matter was thereafter set for hearing on the 17/6/2019 when the appellant failed to attend court and the case was adjourned t the 03. 07. 2019. even on that date the appellant did not show up and the suit was dismissed for non- attendance by the plaintiff.

18. The appellant files got wind of the dismissal and filed an application for reinstatement dated 3/7/2019 which application was allowed on 9/7/2019, the suit was reinstated and given a hearing date of 20/8/2019. when parties appeared before the court on the hearing day, the appellant told the court that he was indebted and keen to settle the debt and had in fact paid a sum of Kshs 1. 6 million to the respondent. To enable parties attempt settling the suit out of court, the court adjourned the matter and gave 17/9/2019 to confirm settlement but come the appointed date no settlement had been reached forcing the court to fix a date for hearing unless the payment would have been made in full. On the 03. 12. 2019 set for hearing, the appellant indicates to the court that he has another application dated 27/11/2019 which he wished the court to address before the matter could be heard. The court declined that request and gave time allocation at 10. 30 a.m. for hearing of the substantive case. When the appointed time came, the appellant was absent a fact the court didn’t approve of resulting in the suit being dismissed for non-attendance.

19. From the foregoing trail of events, it is evident that despite the appellant admitting to be indebted to the 1st respondent and despite the appellant having instituted the suit, the appellant was not keen to prosecute his case as captured in the many occasions the matter could not proceed on account of non-attendance and numerous applications.

20. The appellant’s strongest argument is that he instructed his advocates to represent him in the matter and the repercussions of the failure by his advocate to attend court on his behalf should not be visited on him. It is also argued that he has a strong case to merit not being shut out.

21. The court proceeds from the learning that an advocate is an agent of the client and that he who acts by agent acts by himself. The case remains that of the litigant who has no justification to sit back and let the advocate proceed as the principle. In that agent-principal relationship there are rights and obligations created which themselves attract remedies in the event one party fails in its obligation. To protect the party who has put his trust in an advocate from harm without remedy, there is now a legal obligation that every advocate takes out an indemnity insurance policy. That makes it apparent that a client let down by counsel has a remedy against the advocate. That remedy is not to keep an innocent litigant in court by countless setting aside default orders merely because an advocate for the opponent has failed in his obligation to the client. It is my suit against the advocate for his failure to act diligently and professionally to defend the client’s interests in the litigation. It is now not enough, and it shall not always fly to merely assert that the fault of an advocate should not be visited against the litigant. It is now time to say that in some circumstances, it is just and desirable that the client follows his trust and choice of counsel with the vigour enough to seek compensation for being let down by counsel.

22. The duty of a litigant in the trial process was Savings & Loans Ltd –vs- Susan Wanjiru Muritu (Nairobi)(Milimani) HCCC No. 397 of 2002 where the court observed as follows:-“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocate’s failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case.The Court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel for the litigant on account of such advocate’s failure to attend the Court. It is the duty of the litigant to consistently check with the advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default Judgment that was dismissed by the Court, it would be a travesty justice for the Court to exercise its discretion in favour of such a litigant.”

23. Being minded of the fact that justice is to all the parties and not just the plaintiff alone, I am of the view that the appellant intentionally worked to delay the prosecution of his case probably hoping that by the time the suit was determined he would have raised money to settle his debts which would be akin to a modification of the loan terms in his favour.

24. In this matter the suit was dismissed on a date set for hearing more than sixty days earlier. On the date the suit was dismissed there is no indication that the appellant himself was in attendance to give evidence to progress his case. He took it for granted that because he had filed a subsequent application the court had no option but to adjourn the hearing. In other words, he elevated himself to the pedestal of the case manager determining at what pace it would move with the court remaining a bystander. Such stand only portrays him as one not keen to assist the court in achieving its overriding objective of having court disputes determined in a timely, proportionate and affordable way. He acquired for himself before the trial and before this court as a litigant who has set out to delay and defeat the course of justice and thus a party not deserving of a judicious discretion I n setting aside. The trial court was thus apt on the law when it declined to set aside and there would be no justification to interfere with the decision so made.

25. The appellant agreed before the trial court to be owing the 1st respondent, had proposed to pay, alleged to have made part payment and in fact filed an application in that regard. The moment that concession was made, there remained no dispute to be resolved by the court. It is thus obvious that it would be an act in superfluity to set aside and reinstate a suit that discloses no cause of action. The court cannot be seen to infer dispute where none exist. This matter is thus best left rested and file closed. Even the agreement that a sale took place also renders the plaint as filed as at the time of dismissal to stand as overtaken by event. No meaningful purpose would be served by setting aside and reinstatement

26. For the reasons set out above and conclusions made, the court finds the appeal to lack merit and the same is dismissed with costs.

DATED, SIGNED AND DELIVERED, VIRTUALLY, THIS 18TH DAY OF DECEMBER, 2024. PATRICK J O OTIENOJUDGEIn the presence of:Court assistant: AngieNo Appearance for the partiesKK. HCCA. NO. 43 OF 2020 – JUDGMENT Page 3 of 3