[2022] KEHC 16313 (KLR)

Ouko v Olendo (Civil Appeal 11 of 2018) [2022] KEHC 16313 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16313 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal 11 of 2018

KW Kiarie, J

December 15, 2022

Between

Joshua Ouma Ouko

Appellant

and

Raymond Olendo

Respondent

Ruling

1. Raymond Olendo, the respondent/applicant herein, moved the court by way of Notice of Motion dated July 12, 2022. It is brought under sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 9 Rule 9, Order 22 Rule 22, Order 42 Rule 23 and Order 51 Rule 1 of the Civil Procedure Rules& articles 50 and 159 of the Constitution of Kenya. He is seeking the following orders:a.That the honorable court be pleased to certify this application urgent and service be dispensed with in the first instance.[Spent]b.That the honorable court be pleased to order stay of execution of the judgment decree and certificate of costs herein pending hearing and determination of this application.c.That this honorable court be pleased to set aside the entire proceedings and the resultant judgment delivered on July 13, 2021 and re-hear the appeal de novo.d.That the costs of this application be provided for.

2. The application was premised on the following grounds:a.That the applicant/respondent’s motor vehicle that is the subject of this suit was insured by APA Insurance Co. Ltd and the APA has hitherto defended its interest in the lower court suit having appointed an advocate of which the applicant never participated;b.That the applicant has hitherto been unaware of what transpired in the lower court and the appeal and only came to be aware of the judgment in this matter on July 4, 2022 when APA insurance Co. Ltd notified it of the appeal judgment was delivered April 27, 2021 and the appellant is very likely to commence execution of the judgment and decree any time from now having extracted the decree and certificate of costs.c.That upon the applicant perusing the court file in this appealed learnt that the APA Insurance Co. Ltd out of neglect, recklessness and negligence had abandoned the appeal and the appeal proceeded unopposed and unchallenged giving he court latitude and leeway to make an award it pleased that enhanced the lower court’s award to an amount that is beyond the policy limit to the applicant’s detriment.d.That the APA Insurance oblivious of its fault and abandonment of the appeal and the matter having proceeded ex-parte and without notice to the applicant now wants the applicant to pay the excess of the policy limit of kshs.1,140,368/-.e.That the appellant will execute his decree and certificate of costs against me and not the APA Insurance Co. Ltd.f.That the applicant was never notified of the hearing dates of the appeal and seeks the judgment herein set aside and heard afresh to adequately defend his interest.g.That the judgment herein was rendered when technically another advocate who was appointed by the APA Insurance was purportedly on record for the applicant but not appointed by the applicant.h.That the applicant’s constitutional right to be heard and access justice has been gravely abridged.i.That the applicant having been locked out of the proceedings the resultant judgment was rendered without merit.j.That this court is seized with legal authority to order stay of execution and grant leave to the new advocate to come on record and to set aside an ex-parte hearing and judgment, and order the matter to be re-heard afresh.k.That the appellant/respondent does not stand to suffer any prejudice, loss or damage if the orders sought for herein are granted as he will still have his day in court, but to the contrary the Applicant is bound to pay Kshs.1,140,368/- by a judgment and decision made against him without being heard.l.That it is in the interest of justice that this application is allowed.m.That this application has been made timely and in good faith.

3. The respondent opposed the application on the following grounds:a.That the application lacks merit in totality and the same should be dismissed with costs.b.This application has been overtaken by events and is an afterthought, part settlement having been made by APA Insurance Co. Ltd, being the applicant’s insurance.c.That as admitted by the applicant, his insurer, APA Insurance Co. Ltd, having given instructions to the firm of Simiyu Opondo, Kiranga & Co. Advocates, he was represented by the said firm of advocates from the onset of this suit at the subordinate court.d.That I verily know that when this appeal was filed, the same firm of Advocates Simiyu, Opondo, Kiranga & Company Advocates represented the defendant.

4. On July 13, 2021 this court delivered a judgment in this matter. This is the judgment that applicant is seeking to set aside.

5. When the appeal was filed, it was served on the Simiyu, Opondo, Kiranga & Company Advocates, the firm on record for the respondent. They did not respond to the appeal and when served with submissions they also did not file theirs. An advocate on record for a party is a legally recognized agent for such a party. The applicant cannot be heard to say that he was not aware of what transpired in this matter.

6. I therefore find that there is no basis for me to set aside the proceedings and the resultant judgment delivered on July 13, 2021. The application is dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF DECEMBER, 2022. KIARIE WAWERU KIARIEJUDGE