[2022] KEHC 15292 (KLR)

Mwangi & another v Ndungu ((Suing as the Personal Representative the Estate of Stephen Ndungu Burugu- Deceased)) (Civil Appeal 26 of 2019) [2022] KEHC 15292 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15292 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 26 of 2019

HK Chemitei, J

November 10, 2022

Between

David Mwangi

1st Appellant

George Ndumbi Kimani

2nd Appellant

and

Veronicah Gathoni Ndungu

Respondent

(Suing as the Personal Representative the Estate of Stephen Ndungu Burugu- Deceased)

(Being an Appeal from the Ruling of Hon E Kelly (SRM) Nakuru Dated 25th January, 2019 In Nakuru CMCC No 1008 Of 2016)

Judgment

1. This appeal arises from the ruling delivered by the learned trial magistrate in Nakuru CMCC No 1008 of 2016. The genesis of the dispute between the parties herein is that on September 19, 2015 the deceased herein was lawfully driving motor vehicle registration number KCC 839S along Nakuru-Nairobi highway when at around 8. 00 p.m. at Free area, the appellants’ driver drove motor vehicle registration number KCA 112 J so recklessly and negligently leading the deceased to ram the motor vehicle from behind consequent upon which he sustained fatal injuries.

2. The respondent vide a plaint dated August 25, 2016 at the lower court prayed for judgment against the appellants jointly and severally for general damages, special damages and costs of the suit plus interest at court rates. Both parties entered a consent dated January 25, 2018 on liability in the ratio of 70:30 in favour of the respondent and all documents filed be admitted as evidence and the same was adopted as an order of the court. Subsequently on quantum, Judgment was entered in favour of the plaintiff/respondent as against the defendants/appellants for a cumulative sum of Kshs 1,772,241/= plus the costs of the suit and interest.

3. The parties herein filed another consent dated March 21, 2018 to have the consent filed on February 15, 2018 to be set aside and all the consequential orders or judgment flowing from the said consent. Thereafter the appellants filed an application seeking stay of execution of a decree emanating from the judgment delivered by the lower court on October 26, 2018. The trial magistrate in a ruling date January 25, 2019 dismissed the said application in its entirety with costs to the plaintiff/respondent.

4. In the said ruling the trial magistrate highlighted that both parties knew that they had a consent but none of them found it necessary to bring the same to the attention of the court and especially the appellants whose favour the consent was. That when the matter came for mention on September 12, 2018 the advocate for the appellants was present in court but never raised any issues with regard to the consent dated January 25, 2018 but instead took another date for delivery of judgment. Further, that the letter of protest filed by them was received at the court’s registry after delivery of the judgment. The trial magistrate observed that both parties and especially the defendant/applicant slept on their duty and hence the court cannot be blamed for not acting suo moto.

5. As to whether there was error on the face of the record, the trial magistrate placed reliance on the case of Muyodi v Industrial and Commercial Development Corporation & Another [2006]1EA 243 where the court held that an error which had to be established by a long drawn process of reasoning or on point which there may conceivable be two opinions, can hardly be said to be an error on the face of the record. She observed further that the ratio in that case applied to the instant case, that litigation had to come to an end and that equity does not aid the indolent.

6. Aggrieved by that ruling, the appellants filed this appeal vide Memorandum of Appeal dated November 4, 2020, setting out the following grounds of appeal:a.That the learned trial magistrate erred in law and in fact when she failed to accord the appellant the right to present and be heard on their defence while it was clear from the record that the Appellants were keen to do so.b.That the learned trial magistrate denied the appellants the right to a fair trial and hence condemned the appellants unheard. This was despite the fact that the respondent would not be prejudiced in any way as both parties would have their respective days in court.

7. The appellants prayed that their appeal be allowed, the ruling delivered on October 13, 2020 together with the consequential orders therewith be set aside and costs of this appeal be awarded in their favour.

8. Parties were directed to canvass the appeal by way of written submissions which they have complied.

Appellant’s Written Submissions 9. The appellants regarding their first ground of appeal submitted that the proceedings from the lower court undeniably demonstrated their interest in presenting their case and being heard on their defence. It is also the appellants’ submission that the consent dated March 21, 2018 was a valid instrument which the trial court ought not to have ignored and instead wrote its judgment hence denying them from presenting their case and defence. That neither the appellants nor the respondent challenged the said consent and there was no evidence to suggest that the same contravened any law or public policy. They draw the court’s attention to the case of John Nganga Kibe v Rebeccah Muthoni Kiama & Another ELC Case No 490 of 2017.

10. Regarding the second ground of appeal on fair trial, the appellants relied on Article 50 of the Constitution of Kenya, 2010 and the case of Apollo Mboya v Judicial Service Commission & Another; Justice Kalpana Rawal & 4 others (Interested Parties) HC (Nairobi) Petition No 204 of 2016.

11. As to whether a litigant control of his matter was just because the court had already reserved its judgment for delivery, the appellant s placed reliance on the case of Geoffrey M Asanyo & 3 others v Attorney General[2018] eKLR and Richard Ncharpi v Independent Electoral Boundaries Commission & 2 others[2013] eKLR.

Respondent’s Submissions 12. The respondent in her submission raised three issues for determination namely; whether the appellants had made a case to warrant interference with the ruling of the lower court, whether this appeal has been overtaken by events and reliefs sought should issue.

13. On the first issue, the respondent submitted that there was no evidence before the lower court to prove that there was an error on the face of the record to warrant review. Also, that the appellants had not demonstrated to this court that the lower court failed to apply the law applicable to review correctly and as a result reached a wrong conclusion.

14. On the second issue, the respondent submitted that the present appeal was no longer justifiable as there was a lawful declaratory judgment in existence which could not be in existence but for the non-compliance and indolence of the appellants in complying with stay orders. She placed reliance on the case of George Okoth v Registrar of Trade Unions & 2 others [2018] eKLR.

15. On the last issue, the respondent submitted that the prayer sought to set down the lower court matter for hearing when a judgment in existence in the matter has not been set down cannot issue because it would be made in vain. She urged the court to dismiss the appeal with costs as it was devoid of merit.

Analysis and Determination 16. Having considered the trial court record, the grounds of appeal and submissions for and against this appeal and cited cases, the main issue for determination is whether the trial magistrate erred in law and fact when, by her ruling dated January 15, 2019 she dismissed the appellants’ application for review and setting aside judgment delivered on October 26, 2018 and for the suit to be set down for hearing and determination on merit.

17. It is not disputed that prior to the writing of the judgment in the lower court, the parties herein had recorded a consent in court on February 15, 2018 and the same was adopted as an order of the court. Further proceedings of March 2, 2018 showed that judgement was reserved for May 4, 2018. The court did not sit however on the said May 4, 2018 and judgement was pushed to October 19, 2018. On the said date judgement was not ready and October 26, 2018 was given as the next date for delivery which it materialized.

18. It is however noted that on March 21, 2018, the appellants through their letter which was actually a consent agreed to set aside the consent of February 15, 2018 together with all the consequential orders and or judgement. Both parties signed the same and it was paid vide this courts receipt no 7547943 dated 29 March 2018.

19. As clearly demonstrated, the same was not received by the court through the usual stamping but for the fact that a valid receipt was issued, it legitimized in my view the consent. The rest of the processes was purely administrative in nature. By this time, it was obvious that the file was with the trial magistrate. The normal administrative procedure was to receive the paid for consent, have it stamped by the registry and forward it to the trial court probably through the court assistant who would in turn deliver it to the judicial officer.

20. Once the judicial officer is seized of the order, she/he would then proceed to act on it on the best way as it deems necessary. It becomes onerous on the part of the litigants to pay for the pleading at the cash office then ensure thereafter that the above protocols are followed. Once the payments have been done, the next procedures are purely administrative and they have no hand in it save to get back their copy for record purposes.

21. On this score the trial court went on to state in its ruling that;“...being the second consent referred to by the defendant to set aside the 1st consent was neither minited in the court file nor was it filed and the court had no slight way of knowing of its existence before and even at the time of delivery of judgement. The parties had not even on their part perused the court file to confirm if the said consent was minited in the court file or even filed.”.

22. The court went ahead to blame both parties and especially the appellant for not bringing it to the attention of the court that there was a consent already.

23. Taking the totality of the above facts ,it was in my considered view appropriate for the trial court to have reviewed its judgment and set it aside for the simple reason that there was a mistake on record which squarely laid on the three parties ,namely the appellants and the respondent who did not notify the court of the second consent and more importantly the courts registry which received the consent as early as March 2018 and failed to process it in the manner as stated above and to ensure that it reached the table and or chamber of the judicial officer.

24. In other words, although the trial court was not to blame solely for the failure to receive the consent, it was necessary to set aside the judgement however laborious it was to arrive at. The fact that this was a consent by both parties made it more plausible. (See Geoffrey M Asanyo & Three Others v Attorney General, Supreme Court of Kenya Petition No 21 of 2015).

25. On the issue of fair trial as raised by the appellants on the second ground of appeal, I note upon perusal of the lower court records that the appellants have specifically demonstrated in their defence denials to the allegations of negligence which they intend to prove at the earliest opportunity and have instead blamed the respondent for contributory negligence.

26. In Multiscope Consulting Engineers v University of Nairobi & Another [2014] eKLR where the court held as follows:“This court further employs the principle that a right to a hearing and therefore fair trial is enshrined in Article 50 of the Constitution is a fundamental Human Right and the cornerstone of the rule of Law. It also up with the right to access justice under Article 48 of the Constitution. It is the court’s duty to accord or ensure every person who has submitted to the jurisdiction of the court is accorded an opportunity to ventilate their grievances.”

27. Further inWachira Karani vs Bildad Wachira [2016] eKLR as was quoted in the case ofDavid 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. InPhilip Chemowolo & Another –vs- Augustine Kubede [1982-88] KAR 103 at 1040 the court held as follows: -“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.”

29. I find that the appellants and the respondent broadly speaking have been keen to have the matter resolved as evidenced by the two consents on record. The unfortunate part is that the matter has not proceeded as expected and the blame is not on the trial court but on the parties themselves. The case belongs to them and not the court.

30. As a matter of fact, it is imperative to note that by signing the second consent the respondent acknowledged the fact that the suit ought to have been reopened by having the first consent set aside. The implication was that the parties and especially the appellant would have been allowed to defend themselves afresh.

31. The respondent has raised the issue of the declaratory suit namely Nakuru cmcc no 107 of 2019. This court to the extent that it is not seized of the same will not say much on it. Suffice to state that the trial court ought to have allowed the application for review for the reasons stated above.

32. In the premises, the appeal is allowed, the trial courts judgement set aside with all the consequential orders. The lower court matter shall proceed afresh before another court other than Hon E Kelly.

33. Each party shall bear its costs on this appeal.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 10TH DAY OF NOVEMBER 2022. H. K. CHEMITEI.JUDGE.