https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7540

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E019 OF 2023** **MURANG’A COUNTY GOVERNMENT ........................APPELLANT** **VERSUS** **BATIMENT ENGINEERING & ASSOCIATES LTD ……………………………………………………………………………………………………RESPONDENT** (*Being an appeal against the Ruling and the order of Hon. Susan N. Mwangi Senior Resident Magistrate delivered on 5th April 2023 at Muranga in CM’S Civil Case 326 of 2018.)* **JUDGMENT** 1. The Respondent herein sued the Appellant for breach of contract in respect to consultancy services relating to Northern **Collector Tunnel Project,** offered to the county Government of Muranga , the Appellant herein. It was the respondent’s case that it fulfilled its obligation, but the Appellant failed to pay Ksh. 6,152, 763.30 being the consideration for the work done. 2. On 16/05/2019, an Interlocutory Judgment was entered against the Appellant, for failing to enter appearance and the matter was scheduled for formal proof. The formal proof hearing proceeded on 07/09/2022. 3. Before delivery of Judgment, the Appellant filed an Application dated 16/09/2022 seeking to set aside the Ex-Parte Judgment. In a Ruling delivered on 10/01/2023, the court allowed the Application on condition that the Appellant pays throw away costs of Ksh. 50,000/= to the Respondent. There was no compliance by the Appellant, and on 5/4/2023 when the matter came up for hearing of the main suit, the court gave an indication that the Appellant’s Advocate would not be allowed to address court for want of the aforesaid compliance . 4. The Appellants was aggrieved by the order and filed the present Appeal. **Grounds of Appeal** 1. *The Learned Magistrate erred in law and fact by refusing the defendant a chance to participate in the case.* 2. *The Learned Magistrate erred in law and in fact by failing to consider that the defendants were only allowed to participate in the case on 10/01/2023 and needed time to organize themselves.* 3. *The Learned Magistrate erred in law and in fact by failing to consider that Kshs 50,000/= being throw away cost too high in the circumstances and defendant had already paid Ksh. 25,000/= of the said amount.* 4. *The Learned Magistrate erred in law and in fact by failing to consider the application for adjournment despite the defendant having written to court and the plaintiff as well in advance.* 5. *The Learned Magistrate erred in law and in fact by failing to consider that the defendant had already paid part of the throw away costs Ksh. 25,000/= to show willingness of defendant to participate in this case.* 6. *The Learned Magistrate erred in law and in fact by failing to recognize the defendant’s willingness to prosecute the case and denied the defendant a constitutional right.* 7. *The Learned Magistrate failed in law and in fact by completely locking out the defendant from producing any evidence in court.* 8. *The Learned Magistrate erred in law and in fact by failing to take cognizance of the defendant’s right to defend.* 9. The Appeal was heard through Written Submissions. **Appellant’s submissions** 1. The Appellant faults the trial Magistrate for denying it a chance to participate in the case, despite appreciating the need to prioritize substantive justice; that the Appellant’s counsel was not given time to prepare for the case as he only came on record on 10/01/23. It is further submitted that the trial Court failed to observe that the Appellant had partially complied with the order on costs, by paying half of the amount that had been ordered. It is stated that the denial of adjournment was harsh; that the part -payment was a clear indication of the Appellant’s willingness to participate in the suit. Finally, that as a result, the Court went on to deliver judgment without taking any evidence from the Appellant. **Respondent’s submissions** 1. On perusal of the Respondent’s Submissions it is evident that the Respondent has addressed itself to the Ruling of 26/07/2023, which ordered the Appellant to deposit Ksh. 6,152,763. The submissions therefore have no relation to the order of 05/4/2023, which forms the subject matter of this Appeal. **Analysis and determination** 1. This Court, being the 1st Appellate court has the duty to review the evidence, to do its own evaluation and arrive at its own findings ( see***: Selle and Another v*** ***Associated Motor Boat Company Ltd and Others [1968] EA 123*** 2. The Court has identified 2 issues for determination, namely: 3. *Whether the court erred in ordering throw away costs of Ksh. 50,000.* 4. *Whether the Appellant was denied a chance to be heard.* 5. Awarding of costs is at the discretion of the trial Court and an Appellate Court can only interfere with the said discretion if the discretion has been exercised injudiciously, based on the wrong principles, or if it is manifestly wrong.( see the court of Appeal decision in ***Supermarine Handling Services Ltd versus Kenya Revenue Authority [2010] eKLR) .*** 6. The award of Ksh. 50,000 was made when the Court was setting aside an exparte judgment entered on 16/5/2019, for want of appearance and defence on the part of the Appellant. The Application giving rise to the Ruling was dated 16/09/2022 and in which the Appellant had sought orders as follows: 7. *Service of this application be dispensed with at the hearing of the first instance and this application be certified as urgent.* 8. *There be a stay of proceeding until this application is heard and determined.* 9. *Exparte Judgment entered on 16/5/2019 and all its consequential orders be set aside and leave be granted to the defendant to file a defence.* 10. *The process server summons to enter appearance be examined in Court.* 11. *Cost be in cause.* 12. Prior to the filing of the above stated Application however, the Appellant had been participating in the proceedings. There were court attendances on 19/07/2022, 02/08/2022, 16/08/2022 and 07/09/2022, in which both counsels were in attendance. There was also an interlocutory judgment in place, and there were the costs of the subject Application. For the above advocate’s services, the costs of ksh. 50,000 was justified and this court has no basis to interfere with it. *The Right to be heard* 1. On this issue, the Appellant has argued that the advocate having been only appointed on 10/01/23 had not had time to prepare for the hearing; that the request for adjournment on the hearing date was unfairly denied, particularly considering that the Respondent’s Advocate had prior knowledge about the intended adjournment; that the part-payment of costs demanded, was a demonstration of the Appellant’s willingness to participate in the proceedings. The Appellant further submitted that the trial Court denied the Appellant the chance to Cross-examine the Respondent’s witness. 2. A perusal of the trial Court’s record however show that the Appellant’s counsel participated in the proceedings from 19/07/2022 as aforesaid, and kept on applying for adjournments for varied reasons. The Application seeking entry of Judgment was served on the Appellant, evidenced by the Affidavit of Service date 26/10/2018. Further contrary to the Appellant’s counsel submissions, the counsel came on record on 18/07/2022 through a Notice of Appointment dated the same date and not in January 2023. 3. Further when the Trial Court set aside the Interlocutory Judgment on 10/01/2023, the Appellant never filed any defence. Thus, when the matter came up for hearing on 05/04/2023, the Appellant had no defence on record. 4. Finally, contrary to the Appellant’s assertion, the Respondent’s Advocate ceded ground during the hearing and indicated that the Appellant’s counsel may be allowed to cross- examine witnesses. The Appellant’s counsel walked out and never returned. She was however present when the concession was made. 5. The record therefore shows that the Appellant was given a chance to file defence; to be heard; and finally, even in the absence of a statement of defence , was given a chance to cross- examine the respondent’s witnesses. . They didn’t take up any of those offers. 6. The Appellant simply sat on, or deliberately failed to take up its chance to be heard, and cannot be allowed to turn around, and blame the court for its misdeeds or indolence, or plead violation of Article 50 of the constitution. The Appeal has no merit. 7. Before I conclude, I have pondered about the benefit of this Appeal had the verdict favoured the Appellant. I have heard a chance to peruse the entire lower Court file. The hearing of this matter has been concluded and Judgment delivered. Further both counsels informed the court that there were two other pending Appeals, arising from different decisions albeit made at different times. One wonders whether three memorandums of Appeal were necessary, when one, with appropriate amendments, would have sufficed. To have three running appeals arising from the same suit is simply to waste judicial time and abuse the Court process. **Final orders.** 1. The Appeal is hereby dismissed with costs to the Respondent. Dated, Signed and delivered virtually at Isiolo, this 28th day of May, 2026 S. Chirchir Judge In the presence of:- Roba Katelo-Court Assistant. Mr. Kimwere for the Appellant Mr.Wanda for the Respondent.