[2023] KEHC 25025 (KLR)

Naini & another (Suing as Legal Representatives of the Estate of the Late Edward Reuben Maina Mwangi) v Emirates Traders & another (Civil Appeal E063 of 2022) [2023] KEHC 25025 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25025 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E063 of 2022

HI Ong'udi, J

November 3, 2023

Between

Regina Naini

1st Appellant

Paul Mwangi Maina

2nd Appellant

Suing as Legal Representatives of the Estate of the Late Edward Reuben Maina Mwangi

and

Emirates Traders

1st Respondent

Samson Chege Macharia

2nd Respondent

(Being an Appeal on the Ruling and order of Honourable Y. M. Barasa SRM delivered on the 1st of September, 2022 in Naivasha CMCC No. 258 of 2021)

Judgment

1. This is an Appeal that stems from the Ruling in Naivasha CMCC No. 258 of 2021 delivered 1st September, 2022 by Honourable Y. M. Barasa, SRM.

2. The 1st Respondent moved Court vide the Plaint dated 6th May, 2021 under the doctrine of subrogation and sued the Appellant together with the 2nd Respondent for loss and damage in respect of an accident that occurred on 8th May, 2018 along the Mai-Mahiu Road at Governor area involving motor vehicle Registration number KCF 268Y belonging to the 1st Respondent and motor vehicle registration number KBR 825V belonging to the Appellant’s husband.

3. As a result of the accident the Appellant’s husband sustained fatal injuries and the 1st Respondent’s vehicle KCF 268Y also sustained material damage which was the subject of Naivasha CMCC No. 258 of 2021. Still as a result of the said accident, the 1st Respondent had also instituted Naivasha CMCC No. 259 of 2021 against the Appellant.

4. The Appellant after being served with Summons to Enter Appearance failed to act on the same. Interlocutory judgment was entered in favour of the 1st Respondent on 26th July, 2021 for the sum of Kshs. 3,420,908/= against the Appellant and the 2nd Respondent plus costs and interests. The Appellant in her Application dated 23rd August, 2021 sought unconditional leave to enter Appearance and defend the suit. On 4th February, 2022 the Application was allowed on condition that the Appellant pays throw away costs within 7 days therefrom.

5. When the matter came up for mention on 16th March, 2022, the Appellant was yet to comply with the orders whereby, the Respondent sought that the judgment be reinstated which request was granted by the Court. The Appellant then filed a Notice of Motion dated 11th April, 2022 seeking review of the orders of 16th March, 2022 and enlargement of time for payment of thrown away costs. The Application was dismissed on 1st September, 2022. The same orders applied to Naivasha CMCC No. E259 of 2021.

6. The Appellant being dissatisfied with that ruling lodged the present appeal, based on the following grounds.i.That the learned trial magistrate erred and misdirected himself in law and in fact by dismissing the Appellant’s Application dated 11th April, 2022 seeking extension to comply with the court’s orders of 4th February, 2022. ii.That the Learned Trial Magistrate erred and misdirected himself in law and in fact by denying the Appellant and opportunity to defend her suit.iii.That the Learned Trial Magistrate erred in law and in fact by condemning the Appellant unheard against the rules of natural justice.iv.That the Learned Trial Magistrate erred in law and in fact by failing to find that the Appellant has a triable defense.v.That the Learned Trial Magistrate erred in law and in fact by failing to determine the matter substantively and thereby entertained technicalities against the wider interests if justice.vi.That the Learned Trial Magistrate erred in law and in fact by reinstating interlocutory judgment while the Appellant’s statement of defence was on record.

7. The Appellant thus prays that the Appeal be allowed and the Ruling/Order in Naivasha CMCC No. E258 of 2021 be set aside and /or reviewed and the interlocutory judgment be aside and she be allowed to defend her suit unconditionally.

8. The Appeal was disposed of by way of written submissions

The Appellant’s Submissions 9. The Appellant filed main plus supplementary submissions dated 10th January, 2023 through Gekong’a & Co advocates. She seeks refuge in the provision of Order 50 Rule 6 which empowers this court to enlarge time for her to comply with the court’s orders of 4th February, 2022.

10. Counsel in seeking the court’s discretion on enlargement of time relied on the case of Fidelity Commercial Bank Ltd vs Azim Jiwa Rajwani (2014) eKLR and submitted that there was no indolence on the appellant’s part and that she gave sufficient reason why she failed to comply in good time. Further that she is not guilty of abuse of the court process, and the enlargement will not prejudice the Respondent but denial of the reliefs sought will occasion her an injustice.

11. Counsel further submitted that the appellant has all along been keen on defending the suit and that the delay or failure to file the defence was not intentional but was attributable to an oversight and inadvertent mistake on the part of the insurance company which failed to instruct advocates to defend the suit or act on instructions within the set timelines. He added that when the judgment was reinstated, failure to comply with the court’s directions of 4th February 2022 was occasioned by financial constraints on the part of the Appellant.

12. Counsel contended that the Appellant as a house wife was fully dependent on her late husband who was the sole bread winner. That the delay in compliance was due to the fact that she had financial challenges and had to solicit money from friends and relatives to pay the throw away costs. She tried her best and remitted the money but the 1st Respondent declined to receive the same. Further that in seeking to be admitted in the seat of justice, the Appellant invoked Article 50 of the constitution seeking to be accorded a right to fair hearing. She also relied on the cases of: HCCC 1058 of 2000 Charles Mwalia vs Kenya Burau of Standards, Charles Mnyekui Wachira vs Kenya Pipeline Company Limited – HCCC No 128 of 2006 and Patel vs East Africa Cargo Services Limited (19174) EA 75, in support.

The 1St Respondent’s Submissions 13. The 1st Respondent’s submissions filed by Joe Ngigi & Co. advocates are dated 29th March, 2023. Counsel opposed the Appeal and urged this court not to disturb the trial court’s decision. In doing so he relied on the Court of Appeal’ decision in Ephantus Mwangi vs Duncan Mwangi Wambugu [1984] eKLR as well as Bulbul Investment Limited vs Kassam Hauliers Limited [2021] eKLR.

14. He further submitted that court orders are not issued in vain and should be obeyed. He relied on the decision in Trusted society of Huan Rights Alliance vs Cabinet Secretary for Devolution and Planning & 3 Others. [2017] eKLR which laid emphasis on the need to obey court orders

15. He argued that the Appellant was not keen on meeting the conditions set by the court and so chose not obey the court orders. Further that she failed to move the court in time to set aside the order before time lapsed. Counsel also faulted the Appellant for failing to reach out to inform the 1st Respondent of her predicament and her financial constraints meaning it was a conscious resolve not to settle the throw away costs.

16. He contended that the Appellant made an attempt to settle the throw away costs the day after 16th March, 2022 knowing very well the action had been overtaken by events. He further submitted that the Appellant was accorded reasonable time to comply and the court cannot be faulted for not allowing the judgment to be reinstated.

Analysis And Determination 17. This case bears its own uniqueness and having looked at the trial court file, the record of appeal and the rival submissions, I find the issues for determination to be as follows:a.Whether this court should enlarge time for the Appellant to comply with the orders of 4th February, 2022. b.Whether the interlocutory judgment should be set aside and the Appellant allowed to defend the suit unconditionally?c.Who should bear the costs.

18. It is not in dispute that the Appellant was aware of a pending case before the court since service was not denied. The ex-parte judgment was set aside conditionally. Conditions were not met and the judgment was reinstated. The Appellant was aware of the conditions that were placed when she was allowed to defend the suit. When the judgment was reinstated, the Appellant moved court to review the orders of 16th March, 2022, that is to have the reinstated judgment set aside and the time to pay the throw away costs enlarged. The same was dismissed.

Issue No (ii) Whether This Court Should Enlarge Time For The Appellant To Comply With Orders Of 4Th February, 2022. 19. Should this court intervene, by setting aside the order of 1st September, 2022 and enlarge time for the Appellant to comply with orders of 4th February, 2022? If so to what end?

20. The discretion of the court to enlarge time is enshrined in Order 50, rule 6 of the Civil Procedure Rules, 2010 which provides;“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:”

21. The principles to be considered in exercising the discretion whether or not to enlarge time were laid out in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others HCCC NO. 2255 of 2000 [2002] eKLR and these are:i.the explanation if any for the delay;ii.the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice;iii.Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

22. The take away from the above is that the overriding objective of this court is to do substantive justice to the parties involved. The need for there to be a good reason for the delay and the prejudice that may be caused to the other party if the enlargement were granted is what is to be considered.

23. In Salat v Independent Electoral & Boundaries Commission & 7 others [2014] KLR- the supreme court opined“Extension of time being a creature of equity, one can only enjoy if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. (emphasis is mine) Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it”.

24. In the present case, there was a 42 days delay when the Appellant drew the cheque to pay the throw away costs. The same had therefore been overtaken by events. The delay though inordinate has been explained by the Appellant and may be excusable given that she is a widow that solely depended on her late husband as explained. Inspite of this there is prejudice on the part of the 1st Respondent since he has a judgment in his favour, yet has not benefited from it. To what extent shall a successful litigant continue to be prejudiced?

25. Weighing the rights of both parties and in considering the maxim of equity that; “Equity aides the vigilant and not the indolent”. I agree that the Appellant had several options of resolving this stalemate e.g approaching the 1st Respondent to explain her financial challenges or moving the court for enlargement of the time for payment. The Appellant had these options at her disposal which she either failed to utilize or plainly refused to consider or she was not bothered. I am therefore not convinced that the delay was adequately addressed.

26. It was however, the trial magistrate’s finding that the defence raised triable issues and set aside the interlocutory judgment conditionally. While I am not entirely satisfied with the explanation given by the Appellant for the delay, this Court cannot shut its eyes to the fact that there are issues that need to be canvassed in trial. It is therefore my considered view that in the wider interest of justice and in the unique circumstances of this case, that time should be enlarged for the Appellant to comply with the order in question.Issue No. (iii) Whether the interlocutory judgment should be set aside and the Appellant be allowed to defend the suit unconditionally

27. The general principle is that this being a first appeal, the court will only interfere with the trial court’s discretion to set aside an ex parte judgment if it is shown that the trial Magistrate acted on wrong principles. Thus, in Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR the Court of Appeal had this to say:“…this Court will not lightly interfere with the discretion of the trial 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 on 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 a miscarriage of justice.”

28. Order 10, Rule 11 of the Civil Procedure Rules, provides that an ex-parte interlocutory judgment in default of appearance or defence may be set aside and, it states as follows: -“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

29. In CMC Holdings Limited vs. Nzioki [2004] eKLR the Court of Appeal opined as follows:“We are fully aware that in an application before a court to set aside an ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law and there are many decided cases in support of the proposition.”

30. The import of the above provision and authority is that, the power of the court to set aside an interlocutory judgment is discretionary.

31. For this court to interfere with the exercise of discretion by the trial magistrate, it must be shown that his decision was not judicious and thus clearly wrong. It must also be shown that the court misdirected itself or acted on matters on which he should not have acted or because he failed to take into consideration matters which he should have taken into consideration. See Mbogo & another Vs Shah [1968] E.A 93.

32. Contrary to what is submitted by the Appellant that she was denied an opportunity under the constitution to be heard, the trial Magistrate allowed an initial application to set aside the ex- parte judgment. Once such an order is given, the status of a civil suit is to go back to the beginning as if there never was a trial that had been taken or heard. She slept on her rights. The trial magistrate declined to allow her an opportunity to have a second bite at the cherry.

33. In my view, the factors which the trial magistrate took into account are relevant matters for consideration in declining to allow the Appellants’ Application. I am in agreement with the trial Magistrate when he expressed himself as follows:“I wish to concur that the Applicant was given a chance to defend the suit upon paying throw away costs which they failed to do. The allegation that the counsel for the Respondent refused to take the cheque remains an allegation hence that was never reported to court.”

34. In Rayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd [2018] eKLR, the Court stated as follows on the subject of delay: -“It’s an old adage that, justice delayed is justice denied and that justice is weighed on a scale that must balance. Therefore, as much as the Court is obligated to promote the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 and uphold substantive justice against technicalities, the law must protect both the Applicant and the Judgment Creditor for justice to be seen to be done. Even then a mistake by a Counsel is not a technicality. In the same vein the provisions of Section 1A and 1B of the Civil Procedure Act obligates the parties to assist the Court in the expeditious disposal of cases.”

35. Be that as it may, what would the interest of justice dictate? This court is still clothed with the mandate to exercise its discretion so as to grant the Appellant a respite by granting her a chance to be heard more so considering the fact that the suit involves a claim for a substantial amount of money and that the trial Magistrate in setting aside the judgment saw that there were triable issues to be ventilated. I hold a similar opinion

36. I am not persuaded that enlargement of time to comply with the orders 4th February 2022 and setting aside the judgment and allowing the suit to be heard on merit would defeat justice or prejudice the 1st Respondent. In any event, there is no mistake that cannot be put right by payment of costs.

37. I am also aware that there are two other matters filed by the Appellant in Naivasha CMCC E240 of 2021 and Naivasha CMCC E241 of 2021 relating to the same accident and pending before court. The outcome of this Appeal has a bearing on those suits. Disallowing this Appeal and then other two suits are determined in favour of the Appellant would mean that there would be a challenge in implementing the orders. It is my considered view that the Appellant’s cases should be considered and determined together with the Respondent’s cases in Naivasha CMCC E258 of 2021 and Naivasha CMCC E259 of 2021.

38. This being a court of equity and which exists to enforce equity as well as ensuring that the rights of the parties are factored in, the Court should not grant a reprieve without any conditions. I am inclined to consider the decision in Rayat Trading Co. Limited (supra) where the Court held that: -“If the court sets aside a default judgment, it may do so on terms. In most cases the defaulting defendant will be ordered to pay the claimant’s costs thrown away. In addition, the Court may consider imposing a condition that the defendant must pay a specified sum of money into court to await the final disposal of the claim.”

39. The Appellant was given a condition to pay throw away costs in order to allow setting aside of the interlocutory judgement, I don’t see why the same should not be the case herein. In any case the Appellant found the money to pay the throw away costs, drew the cheque and took it to the 1st Respondent’s advocates with a forwarding letter dated 17th March, 2022 albeit late but the payment being overtaken by events, was rejected. Had the 1st Respondent accommodated the Appellant on 17th March 2022, this matter would have been finalized by now. I see no reason why the Appellant should be denied an opportunity to pay the amount.

40. I therefore allow the Appeal on the following conditions;a.That the court does hereby enlarge time as ordered by the trial court’s Ruling of 4th February 2022 for a period of 21 days from today’s date;b.The Appellant to pay the sum of Kshs 10,000/= as throw away costs within the enlarged period of 21 days.c.Failure to comply with orders (a) and (b) above, the order setting aside the interlocutory judgment shall automatically lapse without any further reference to the Court.d.The matter be set down for pre-trial on priority basis upon compliance with orders (a) & (b) above.e.The 1st Respondent shall have costs of the Appealf.The above orders apply to Naivasha CMCC E259 of 2021It is so ordered.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 3RD DAY OF NOVEMBER, 2023 IN OPEN COURT AT NAKURUH. I. ONG’UDIJUDGE