[2022] KEHC 1805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CIVIL APPEAL NO. E10 OF 2020

MUREITHI CHARLES……..….…………………………..…1ST APPELLANT

DANIEL KIMUTAI CHERUIYOT..…………...……..….….2ND APPELLANT

VERSUS

JACOB ATINA NYAGESUKA………………...……...….…….RESPONDENT

JUDGEMENT

1. By a plaint dated 29th April, 204, the Respondent herein sought compensation in the form of general and special damages, costs and interests. The cause of action, it was pleaded, arose from a road traffic accident that occurred on 13th December, 2013 along Ngurunga Road. Following an application for substituted service which was granted and in default of appearance and defence, a request for judgement was made by the Respondent against the Appellants and on 4th May, 2015 interlocutory judgement was thereby entered.

2. However, by a consent order made on 28th June, 2017, the said judgement was set aside and the Appellants were given unconditional leave to defend the suit c

3. After hearing the evidence, the court, on 3rd February, 2017 found the Appellants 100% liable and awarded the Respondent Kshs 300,000. 00 as general damages and Kshs 3,000/- as special damages together with costs and interests.

4. From the proceedings, after the close of the case, on 11th July, 2018, the court, by consent, “paused” the judgement until the appeal is determined. Apparently this matter was one in a series and an appeal had been filed in the other related matters.

5. The record does not indicate whether the said order “pausing” the judgement was ever set aside or whether the appeal referred to was eventually determined. Wat however followed was that on 19th September, 2018, the Plaintiff’s advocates appeared in court and the court after noting that submissions had been filed, scheduled the delivery of the judgement to 30th October, 2018. The position of the Appellant, whether notified of the date does not appear from the record. Nothing substantive seems to have taken place until 19th June, 2019 when the matter was placed before the Court and it was note that the matter was part of a series and that appeals had been filed in the other matters. As the proceedings were before a different magistrate, it was directed that the proceedings be typed and eventually on 11th September, 2017, the Court directed that judgement would be delivered on9th October, 2019 and on23rd October, 2019, it was delivered.

6. By an application dated 22nd November, 2019, the Appellants sought to have the judgement set aside and for leave to be granted to them to file their written submissions on liability and quantum. According to the Appellants on the date when the matter came up for mention to fix a judgement date, their counsel was not present as he was before the High Court sitting in Makueni and he was never served with any notice.

7. After hearing the application, the learned trial magistrate found the reasons for the failure by the counsel for the Appellant to attend court unmerited and dismissed the same. It is that ruling that has provoked the instant appeal.

8. According to the appellants, the matter herein was part of a series of claims that were filed against the Appellants arising from the same cause of action that were dismissed in their entirety on appeal by the High Court in Machakos. It was their case that they have not been accorded an opportunity to file their written submissions and the same is greatly prejudicial to them as it went against the tenets of fair trial.

9. According to the Appellants, the right to a fair hearing which is guaranteed under Article 50(1) of the Constitution encompasses several aspects. These include, a party being informed of the case against them; being given an opportunity to present their side of the story or challenge the case against them; and the party having the benefit of a public hearing before a court or other independent and impartial body. In support of their case, they relied on the case of the Supreme Court of India which stated in the case ofSangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711as was quoted in the case ofGerita Nasipondi Bukunya & 2 others v Attorney General [2019] eKLR.

10. The Appellants also relied on the case of Samuel Musingila Mwinzi v Esther Maasa Kaesa (On behalf of the Estate of Kaesa Kiiti) [2021] eKLR and submitted that the trial magistrate erred in law and in fact in holding that the appellants had proper notice of the matter herein as they were present in court when the date of 24th July, 2019 was issued. Further, the court failed to appreciate that on 24th July, 2019, the appellants were not present on the material day and the court noted that proceedings were still not ready hence a further date for 11th September, was issued by the trial court. The same mention notice was never served upon the appellants herein. Further to the same, the trial court issued a judgment date for 9th October, 2019 which was equally never served upon the appellant herein so as to allow them to file their written submissions before delivery of judgment. The judgment was eventually delivered on 23rd October, 2019 and again a notice of the same was never served upon the appellants.

11. The Appellants lamented that it was a grave miscarriage of justice for the trial magistrate to hold in her ruling that the appellants had proper notice of the matter herein and was only awoken by the judgment of the court as the evidence demonstrates the contrary. In this regard reliance was placed on the case of Wachira Karani Vs Bildad Wachira (2016) eKLRas was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR.

12. It was further submitted that when this matter proceeded for hearing before Honorable Kassam on 11th July, 2018, the parties herein agreed by consent that the trial suit herein be paused until the appeal that has been filed in CMCC 648 of 2014-Mavoko was heard and determined as it arose from the same cause of action. Though the trial court was duly informed of the same when this matter came up for mention on 19th June, 2019 the court directed that the proceedings be typed first as Honorable Kassam had been transferred. Indeed, this court delivered its judgment in the case of Edwin Chiroto Mandera v Mureithi Charles & Another [2019] eKLRas follows:

“Considering that the only evidence on record as to how the Appellant found himself on the back of the lorry was the uncorroborated evidence of the Appellant which evidence discredited by the Respondent, the learned trial magistrate cannot be faulted for arriving in the decision she did. Whereas the Appellant contended that he was permitted by the driver of the vehicle in question, in his own evidence, he did not know who the driver was. That kind of evidence can only be explained on the basis that the driver did not in fact permit him to board the vehicle and that he did so due to lack of alternative means of transport and due to the state of weather at that time. He cannot, however, blame the Respondent for having chosen to take that risk.”

13. The same position, it was submitted, was equally held by Kemei, J in the case of Mureithi Charles & another v Boniface Kamunzyu Uvyu (suing as personal representative of the Estate of Thomas Kilonzo Kamunzyu (Deceased) [2019] eKLRand it was submitted that the purpose of filing written submissions was to inform the trial court of the decision of the High Court which is binding upon it.

14. It was therefore sought that this appeal be allowed and the ruling as well as judgment of the trial court delivered be set aside.

15. In opposing the appeal, it was submitted on behalf of the Respondent that the learned trial magistrate did analyse and consider the appellants’’ evidence as presented before the court while making its decision hence it cannot be accused of having ignored or failed to consider the same. While setting out the sequence of events, it was submitted that nothing prevented the Appellants from filing their submissions as soon as they realised that the matter had been listed for judgement. Reliance was placed on Haile Selassie Avenue Development Co. Limited v Josephat Muriithi & 10 others [2004] eKLR, Grace Wambui Gachau vs. John Gachau Muchiri [2017] eKLR, Southern Empire Traders vs. Nakuru Players Theatre Club [2018] eKLR, Kenya Red Cross Society vs. Mbondo Katheke Mwania [2019] eKLR, Riziki Fresh Limited & Another vs. JKM [2020] eKLR, and Nganga & Another vs. Owiti & Another [2008] 1 KLR (EP) 749 and urged this Court to dismiss the appeal with costs.

Determinations

16. I have considered the foregoing, the submissions filed on behalf of the parties herein and the authorities relied upon in support thereof.

17. That the decision whether or not to set aside ex parte judgement is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.

18. In this case the grounds upon which the application to set aside the judgement was made were twofold. First it was contended that the Appellants were never notified of the stages of proceedings before the trial court. Secondly, and a s a result, they were denied of an opportunity to file their submissions and bring to the attention the status of the appeal on the basis of which a stay had been granted.

19. As was held by the Court of Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173:

“In an application for setting asideex partejudgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgement is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not considered at all and indeed could not be considered without the appellant’s input..... What the Trial Court should have done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.”

20. That the decision whether or not to set aside ex parte judgement is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.

21. In Pindoria Construction Ltd vs. Ironmongers Sanytaryware Civil Appeal No. 16 of 1976 it was held that:

“It is a common ground that it is a matter for discretion whether or not to set aside a judgement under rule 8 of Order 9B of the Civil Procedure Rules. It is also well settled that the Court of Appeal will not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice… The appellant was not altogether free from blame. He could have tried harder to be present at the date of hearing. He delayed considerably in filing his application to set aside the ex partejudgement. The trial Judge’s exasperation at his behaviour was understandable. Although he should not have been precluded from defending the claim against him he has to be penalised to some extent in view of his somewhat dilatory actions.”

22. The first question for determination is whether the judgement was procedurally entered. As stated hereinabove, the trial court had by consent “paused” the proceedings after the close of the case pending the determination of a pending appeal. Without setting aside or reviewing the said decision, the court, without expressly directing the proceedings to proceed, directed the filing of the submissions in the matter and proceeded to deliver judgement based on the submissions made by the Respondent’s counsel. No inquiry was made as to the fate of the pending appeal for which the proceedings had been stayed. In my view that was clearly unprocedural. The Court ought to have set aside its order staying the proceedings before proceeding with the matter. By failing to do so, the Court failed to afford the Appellants an opportunity to update the Court regarding the fate of the pending appeal which the Appellants submit was determined in their favour.

23. The Respondents contend that the course adopted by the trial court was not prejudicial since submissions are not evidence. That is generally the position. However, since in this case proceedings had been stayed pending another step in the proceedings, it was only fair and just that the Court inform itself through the parties as to whether that step had been finalised. To do so it was necessary that parties be afforced an opportunity to address the Court thereon. By not doing so the proceedings leading to the judgement were rendered wholly unprocedural. It is in that light that I understand the position adopted in the case of Samuel Musingila Mwinzi v Esther Maasa Kaesa (On behalf of the Estate of Kaesa Kiiti) [2021] eKLRwhereby the court noted as follows:

“The court in this matter directed that the Appeal do proceed by way of written submissions. The Respondent could not have filed his submissions before being served with the Appellant’s submissions. Having not served the Respondent’s advocate with submissions even after being directed to do so, and the Judgment of this court having being delivered without the benefit of the court reading the submissions of the Respondent, it is my finding that the Respondent was condemned unheard.”

24. I agree with the position holding of the Supreme Court of India which stated in Sangram Singh vs. Election Tribunal, Koteh, AIR 1955 SC 664, at 711cited in the case ofGerita Nasipondi Bukunya & 2 others v Attorney General [2019] eKLRthat:

“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”

25. That was the position adopted by the Court of Appeal inOnjula Enterprises Ltd vs. Sumaria [1986] KLR 651, where it was held that:

“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved.See London Association for the Protection of Trade & Another vs. Greenlands Limited [1916] 2 AC 15 at 38. ”

26. In my view, this position is supported by the holding of Ojwang, J (as he then was) in Haile Selassie Avenue Development Co. Limited v Josephat Muriithi & 10 others [2004] eKLR where he held that:

“The rules of procedure which regulate the trial process are intended to serve the constructive purpose of expediting trials, and facilitating judicial decision-making with finality. These rules cannot be said to be oppressive to parties, or that they necessarily wreak injustice. On the facts of this particular case, the Defendants ought to have complied with these rules of procedure.”

27. In Wachira Karani vs. Bildad Wachira (2016) eKLRas was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that:-

“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”

28. In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge. It is, as I have held elsewhere in this ruling an unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to invoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure. It is then not a case of the judge arrogating to himself a superior position over a fellow judge, but being required to survey the whole situation to make sure that justice and common sense prevail. Indeed, there is no parallel with an appeal. The judge before whom the application for setting aside is presented will have a greater range of facts concerning the situation after an inter partes hearing, than the judge who acts ex parte. Moreover, the judge is not interfering with the findings made by a fellow judge but is making sure that injustice or hardship would not result from accident, inadvertence or excusable mistake or error. The substance of his judgement would be that in view of the defence, there is prima facie defence. He may not be satisfied with the blunders or non-attendance of the defendant or his advocate, but nevertheless he may hold that it would be just to set aside the ex parte judgement. See Bouchard International (Services) Ltd vs. M’mwereria [1987] KLR 193; Evans vs. Bartlam [1937] 2 All ER 647.

29. In this case the defendant’s failure to appear in court when judgement date was set is attributed to lack of notification and the fact that the Appellants’ counsel was not present in court on that date due to engagements before the High Court in Makueni. Even if the absence of the Appellants was to be blamed on their counsel, as was appreciated by Apalloo, J. A (as then was) in the case of Philip Chemowolo & Another –vs- Augustine Kubede [1982-88] KAR 103at1040:

“Blunder will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”

30. That mistakes do occur in the process of litigation was appreciated by the Court of Appeal in Murai vs. Wainaina (No. 4) [1982] KLR 38 where it was held that:

“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”

31. Having considered this appeal, I find the appeal merited. First, the proceedings were unprocedurally conducted in breach of the Appellants’ right to be afforded an opportunity of being heard. Secondly, the Learned Trial Court did not sufficiently, address itself to the principles that govern setting aside of judgements and hence misdirected itself in the exercise of its discretion.

32. Accordingly, this appeal succeeds, the ruling delivered on 8th October, 2020 in Mavoko CMCC No. 467 of 2014 is hereby set aside, the application dated 22nd November, 2019 is hereby allowed and the judgement the subject thereof set aside. It is hereby directed that the order staying the proceedings therein be and is hereby lifted and the Appellants granted leave to file their submissions with liberty to the Respondents to file a rejoinder thereto after which the Court to pronounce itself on the matter.

33. As the Respondent is not wholly to blame for the manner in which the proceedings were conducted, there will be no order as to costs.

34. It is so ordered.

Read, signed and delivered in open Court at Machakos this 4th day of March, 2022

G V ODUNGA

JUDGE

Delivered the presence of:

Mr Kiwinga for the Appellant

CA Susan