[2022] KEHC 12937 (KLR)

Onyango v Techspa General Supplies & 2 others (Civil Suit 386 of 2016) [2022] KEHC 12937 (KLR) (Civ) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12937 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Suit 386 of 2016

A Mabeya, J

September 9, 2022

Between

Steve Onyango

Plaintiff

and

Techspa General Supplies

1st Defendant

William Kuriah Josiah

2nd Defendant

Jennifer Njeri Kuria

3rd Defendant

Ruling

1. This is a ruling on a notice of motion dated 8/3/2021 brought by the defendants. The same was brought under sections 1A,1B, 3 and 3A of the Civil Procedure Act, order 12 rule 7 and order 50 rule 6 of the Civil Procedure Rules.

2. The applicants sought for the setting aside of the ex-parte proceedings, consequential judgement and the decree entered herein and for the re-opening of the case for them to present their case.

3. The grounds were set out in the body of the application and the supporting affidavit of William Kuria Josiah, the 2nd defendant. These were that the defendants are facing a real and imminent attachment emanating from the decree issued in this matter. That judgment was entered on 28/4/2020 without any notice or knowledge of the defendants and that it is not until 3/3/2021 when the auctioneer called them that they became aware.

4. They immediately instructed Okwatch & Company Advocates to find out the status of the suit. They discovered that the warrants of attachment were pending signature.

5. The defendants contended that their previous advocates, Messrs Righa & Mburu Advocates failed to inform them of the hearing date. They therefore did not participate in the hearing. That from the judgment, those advocates’ written submissions were not on record and it is likely that none were filed.

6. The defendants plead that the mistake and inadvertence of their counsel ought not to be visited upon them and seek an opportunity from the court to present their case and evidence to enable it to come to a just determination.

7. In opposition the plaintiff swore a replying affidavit on 24/3/2021. He contended that the application was an abuse of the court process and did not disclose any reasonable grounds to warrant the prayers sought as it is based on falsehood and misrepresentation of facts. That they participated fully during the pretrial stage of the case and had no solid defense.

8. That the defendants continuously sought adjournments during the hearing of the suit. That both parties filed their submissions, the defendants filed their submissions on the October 30, 2019 and were fully aware of the proceedings.

9. That judgment was delivered on 28/4/2020 but the defendants took no steps. A taxation notice was served on 5/11/2020 but no attempts were made to challenge the judgment. He urged that the application be dismissed.

10. This is an application to set aside ex-parte proceedings. The principles applicable are; the reason for non-attendance, that the application should be made timeously and the prejudice to be suffered by the opposite party.

11. Theex-parte proceedings took place before October, 2019 as the defendant’s submissions were filed on October 30, 2019. The impugned judgment was made on 28/4/2020 and taxation notice served on 5/11/2020. The present application was lodged on 8/3/2021 nearly a year since the judgment was made. There was clearly inordinate delay.

12. As for the reasons for non-attendance, the defendants alleged that their previous advocates did not inform them of the hearing date or the proceedings. A case belongs to a litigant, not the advocate. For a litigant to dump the case with the advocate sit back and expect that the advocate will prosecute or defend the matter is spurious.

13. In the present case, it is clear that the defendants took over one year to discover that their case had been concluded without their participation. Obviously, their conduct is not that of a prudent and vigilant litigant. In any event, the defendants did not serve the application upon their said former advocates to comment on the allegations made against them by the defendants.

14. In such an application, where blame is directed at an advocate, it is always important that such an advocate is served with such an application for him to respond, if he thinks fit. Definitely no advocate can fail to respond to such accusations as they are close to professional misconduct. It is from such response or non-response that the court can gauge the veracity of such accusations.

15. In the present case, since the alleged erring advocates were not served, the court cannot know where the truth lies.

16. Setting aside an ex-parte judgment is a matter of discretion of the court that is exercised to promote justice. In Esther Wamaitha Njihia & two others vs Safaricom Ltd[3], it was held: -“The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel vs EA Cargo Handling Services Ltd.[4]) the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise , to obstruct or delay the cause of justice(see Shah vs Mbogo[5]). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration vs Gasyali[6])It also goes without saying that the reason for failure to attend should be considered."

17. Although the above case was in respect of the setting aside an interlocutory judgment, the same applies in this case. The plaintiff has a judgment in his favour. He has been waiting for justice since 2016. The defendants took their sweet time to inquire about the progress of their suit. To upset the regular judgment would be unfair to then plaintiff. It would be highly prejudicial to the vigilant plaintiff who has a judgment in his favour. Justice looks both ways.

18. Accordingly, the application dated 8/3/2021 is without merit and the same is dismissed with costs.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2022. A. MABEYA, FCIArbJUDGE