[2023] KEHC 23421 (KLR)

Njuguna v Kahumbura (Civil Appeal E624 of 2022) [2023] KEHC 23421 (KLR) (Civ) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23421 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E624 of 2022

CW Meoli, J

October 12, 2023

Between

Ruth Nyambura Njuguna

Appellant

and

Joseph Kahumbura

Respondent

Ruling

1. For determination is the motion dated November 16, 2022 by the appellant herein, Ruth Nyambura Njuguna (hereafter applicant) seeking inter aliathat the court be pleased to vary and or set aside the dismissal order of November 15, 2022 in respect of the applicant’s appeal and that the court be pleased to vary and or set aside the dismissal order dated November 15, 2022 of the applicant’s motion dated August 15, 2022. The motion is expressed to be brought pursuant to article 50, 159(2)(d) & 165 of the Constitution, order 12 rule 7, order 42 rule 6 and order 51 rule 1 of the Civil Procedure Rules (CPR) and is premised on the grounds thereon as amplified in the Supporting Affidavit sworn by Mercy Waliaula, counsel having conduct of the matter on behalf of the applicant.

2. To the effect that the Applicant had filed an application dated August 15, 2022 seeking inter alia stay of execution pending hearing of the instant appeal, upon which there were several attendances and on October 4, 2022 parties indicated to the court that they were in the process of negotiations with a view to compromising the motion. That the court allowed parties to pursue negotiations and, if unsuccessful, to file Written Submissions on the motion and a mention date set for November 15, 2022; that counsel but she mistakenly diarized the mention date as November 16, 2022; hence, she was surprised when she received a notification from the court on November 15, 2022 via text message indicating that the matter had dismissed ; that she promptly moved the court vide the instant motion seeking reinstatement of both the motion and appeal.

3. Counsel asserts that the error in diarizing the matter was a mistake she sincerely regrets, asserting that the appeal has a high chance of success, and that the applicant is interested in pursuing it and should be accorded an opportunity to be heard. In conclusion, she deposes that James Kahumbura (hereafter the respondent) will not be prejudiced if the appeal is reinstated.

4. The respondent opposes the motion by way of grounds of opposition dated December 6, 2022. Asserting that it is over one hundred (100) days since the judgment in the lower court was read and the applicant is yet to lodge a letter seeking proceedings, decree or judgment in the lower court, thereby offending the provisions of order 42 rule 2 of the CPR ; that it’s common knowledge that once a matter is filed or actioned in court, the judiciary sends an automated alert notifying the adverse party, who has the obligation to follow up; and that when the matter was last in court on October 4, 2022 the advocate received such notification of the next court date November 15, 2022.

5. Further that the applicant by the present motion is guilty of abusing the court process for her unjust enrichment whilst the respondent continues to suffer denial of his hard earned money; that in the alternative, and if the court is inclined to allow the application, it should require the applicant to deposit the full decretal amount into a joint interest earning account in the joint names of both advocates on record having demonstrated lack of means to refund the respondent’s money.

6. The motion was canvassed by way of Written Submissions. Counsel for the appellant anchoring his submissions on the decision of John Nahashon Mwangi v Kenya Finance Bank Limited (in liquidation) [2015] eKLR on the principles that govern reinstatement, reiterated the contents of the Affidavit material in support of the motion. He argued that the applicant has demonstrated sufficient cause to warrant the court’s discretion to grant the motion. That the error or mistake by counsel was not intentional, hence it is in the interest of justice that the applicant is accorded an opportunity to be heard by allowing the Motion. Citing the provisions of article 159 of the Constitution, the decisions in Wachira Karani v Bildad Wachira [2016] eKLRand CMC Holdings Limited v Nzioka [2004] 1 KLR 173, counsel urged the court to consider the reasons advanced in exercise of its duty to protect and promote the applicant’s constitutional right to a fair hearing and equality before the law.

7. On behalf of the respondent, counsel asserted that the applicant’s material disentitles her from the exercise of the court’s discretion in her favour. He urged the court to summarily deal with the issue of stay pending appeal by having the appellant provide security for the entire decretal sum in an interest earning account, and in default, execution to issue. Finally, and in the alternative, it was argued that the instant motion resulted from the admitted mistake or negligence by counsel, in failing to attend court on November 15, 2022, hence the court should order payment of thrown away costs to the tune of Kshs 50,000/- payable before the appellant is granted audience in respect of the dismissed motion. In supporting his Submissions, counsel called to aid the decisions in Rodah Cheptonui Lang’at v Aggrey Watindi & 2others [2021] eKLR and Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu [2022] eKLR.

8. The Court has considered the material and submissions canvassed in respect of the motion as well as the record herein. It would be apt at this juncture to first address some issues emerging from the respondent’s material in opposition to the motion. The respondent filed grounds of opposition in response to the motion but according to the Case Tracking System (CTS), fees in that regard are yet to be paid. Moreover, the court observes that the respondent’s grounds of opposition canvass factual issues. Order 51 rule 14 (1) of the Civil Procedure Rules prescribes the procedure for a party wishing to oppose a motion as follows; -“(1)Any respondent who wishes to oppose any application may file any one or a combination of the following documents —(a)a notice preliminary objection: and/or;(b)replying affidavit; and/or(c)a statement of grounds of opposition;”

9. Recently the Court of Appeal in Blue Thaitian SRL (Owners of the Motor Yacht ‘Sea Jaguar’) v Alpha Logistics Services (EPZ) Limited (Civil Appeal (Application) E012 of 2020) [2022] KECA 1240 (KLR) addressed the effect of filing only Grounds of Opposition in response to a Motion by stating that; -“Be that as may, it is notable that a statement of Grounds of Opposition is provided for in order 51 rule 14 of the Civil Procedure Rules as a recognized pleading opposing an application in the High Court but is not expressly provided for in the Court of Appeal Rules.What then is the import of filing Grounds of Opposition in response to an application filed in the Court of Appeal? A “ground” is in this regard defined in Black’s Law Dictionary, Ninth Edition at page 772 as “the reason or point that something, (as a legal claim or argument), relies on for validity”. An Affidavit on the other hand is defined at page 66 as “a voluntary declaration of facts written down and sworn to by a declarant before an officer authorized to administer oaths”. Therefore, any facts sought to be introduced in an application before this Court can only be done by way of an Affidavit, and cannot be by way of Grounds of Opposition, and any attempt to do so through the respondent’s Ground of Opposition will be incompetent. In essence, the respondent is therefore restricted to only raising issues of law and to making legal arguments in this application.” (sic)

10. It is the court’s view that the respondent was well within his right to file grounds of opposition rather than a Replying Affidavit in response to the appellant’s motion. However factual issues as contained in the said grounds can only properly be deposed under oath. In opting to file grounds of opposition the respondent restricted himself to issues of law and to making legal arguments only regarding the present motion. Nonetheless, the court is alive to the legal position that the power to vary and or set aside a dismissal order involves the exercise of judicial discretion governed by certain principles. Hence, the absence of a replying affidavit by the respondent does not necessarily give free rein to the applicant.

11. Here, the court has been called upon to determine whether it ought to exercise its discretion by varying and or setting aside its dismissal order issued on November 15, 2022. The applicant’s motion invokes inter alia the provisions of order 12 rule 7 of the Civil Procedure Rules, which provide that; -“Where under this order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

12. The grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, discretion must be exercised judicially and justly. The rationale for the discretion conferred upon the court to set aside its orders was spelt out in the case of Shah –vs- Mbogo andanother [1967] E.A 116:“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

13. The undisputed events leading to the order issued on November 15, 2022 are as follows. The applicant lodged the instant appeal on August 8, 2022 and thereafter filed a Motion dated August 15, 2022 under Certificate of Urgency seeking stay of execution pending hearing and determination of the appeal. On August 18, 2022 when the appellant’s motion was considered exparte the court granted an interim stay of execution to last until inter partes hearing. The matter consequently came up for interpartes hearing on October 14, 2022 when the court directed the parties to explore a compromise on the issue of security failing which respective counsel would file submissions to dispose of the Motion and accordingly the matter was slated for mention November 15, 2022.

14. On the latter date, when the matter was called out, the applicant and or her counsel were absent, and the matter was placed aside to 10:15am. At 10. 15am when the matter was revisited, the applicant and or her counsel were still absent and upon application by the respondent’s counsel, the court dismissed with costs the applicant’s Motion, prompting the instant motion. Evidently, the resultant effect of the orders issued on November 15, 2022 was the dismissal of the applicant’s motion dated August 15, 2022 and not the Appeal lodged on August 8, 2022. Therefore, the prayer in the motion seeking reinstatement of the appeal is erroneous.

15. Regarding the prayer seeking reinstatement of the motion, the principle spelt out by the Court in Shah v Mbogo (supra) was restated by the Court of Appeal in Daqare Transporters Limited v Chevron Kenya Limited [2020] eKLR while considering the discretion of the Court under the provisions of order 12 rule 7 of the Civil Procedure Rules as follows:“The discretion under order 12 rule 7 is exercised so as to avoid injustice as a result of inadvertent or excusable mistakes and errors. Therefore, a court needs to satisfy itself as to whether the reason given by the appellant was excusable…”

16. The sole explanation proffered by counsel for failing to attend court on November 15, 2022 is that she mis-diarized the matter for November 16, 2022 rather than November 15, 2022, the date given by the court. Hence the dismissal of the motion. In support of the said explanation extracts of counsel’s diary for the 15th and 16th of November 2022 were exhibited as annexure “MW-3”. As earlier noted, the respondent eschewed filing any Affidavit material in rebuttal to factual matters in the applicant’s Affidavit.

17. In the court’s view, the explanation of mistake of counsel as advanced herein seems plausible. The court further notes that upon the said realization on dismissal of the application, counsel moved expeditiously to file the instant motion on the same date. The court is alive to the fact that in the course of practice, mistakes do happen including mis-diarized dates by counsel. Apaloo, J.A. (as he then was) famously stated in Phillip Kiptoo Chemwolo and &anor. v Augustine Kubede (1986) eKLR that: -“I think a distinguished equity judge has said:“Blunders 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 determined on its merits.”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 parties and not for the purpose of imposing discipline....”

18. Besides, the right to a hearing is a fundamental right that ought not to be taken away except in proper and justifiable cases. In emphasizing the right, (to be heard on appeal) the Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR stated that:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs IEBC & 2 others (supra); Mbaki & others vs Macharia & another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & another vs Abdul Fazaiboy, Civil Application No 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice…”

19. That said, parties and counsel are equally duty bound to co-operate with the court in the furtherance of the overriding objective to facilitate the just, expeditious, proportionate, and affordable resolution of disputes in accordance with section 1A and 1B of the Civil Procedure Act. In Karuturi Networks Ltd &anor vs Daly & Figgis Advocates, Civil Appl Nai 293/09 the Court of Appeal had this to say concerning the application of the overriding objective in section 1A and 1B of the Civil Procedure Act:“The jurisdiction of this court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective…. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court”.

20. In this case, the court can make orders for the expeditious hearing of reinstated motion so that the respondent will not be unduly prejudiced, in addition to an award of costs which would be adequate compensation. Reviewing all the foregoing matters, the court is persuaded that the justice of the matter lies in allowing the motion dated November 16, 2022, in terms that the dismissal of the applicant’s motion is hereby set aside, and the motion reinstated for hearing on a date to be fixed hereafter, the court declining the respondent’s invitation contained in his submissions, to determine the said motion by this ruling. The costs of the motion dated November 16, 2022 are awarded to the respondent in any event. Finally, the respondent is directed to pay the requisite court fees in respect of the grounds of opposition before the next court date.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 12THDAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: Ms. WaliaulaFor the Respondent: Ms. ChepngetichC/A: Carol