[2022] KEHC 3305 (KLR)

Ouma v Wondernut Kenya Limited (Civil Appeal 493 of 2018) [2022] KEHC 3305 (KLR) (Civ) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3305 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 493 of 2018

DAS Majanja, J

July 7, 2022

Between

Pasty Awino Ouma

Appellant

and

Wondernut Kenya Limited

Respondent

(Being an appeal from the ruling and order of Hon. D. O. Mbeja, SRM dated 21st September 2018 in Milimani Magistrates Civil Case No. 4430 of 2013)

Judgment

1. The Appellant appeals against an order of the Subordinate Court dismissing her application to set aside ex-parte orders closing her case and proceeding with the defence case in her absence. The Appellant was the Plaintiff before the Subordinate court and had sued the Respondent for negligence and consequent damages to her motor vehicle following a collision between her motor vehicle and the Respondent’s motor vehicle.

2. The basic facts leading to this appeal are not in dispute. After some time, the court heard the suit on 12th March 2018 when it took the testimony of the Plaintiff’s witnesses; PW 1, PW 2 and PW 3. PW 4 was stood down to file a witness statement and the hearing was adjourned. On 15th May 2018, the record shows that both parties were ready to proceed. Later on the same day at 1. 00pm, the matter was called out and only the Respondent’s advocate was present in court. He indicated that he was ready to proceed as the directions issued by the court earlier were clear whereupon the court noted that, “The Plaintiff’s case is closed suo moto.” The Defendant called its first witness DW 1. After the court had sworn in and taken the name of DW 1, counsel for the Appellant came into court and the trial magistrate noted that, “Miss Kikanu walks in to court.” The defence hearing proceeded with the Appellant’s counsel cross-examining the witness. The Defendant closed its case and the court fixed the matter for submissions for 18th June 2018. Before the close of the case, the court noted that Ms Kikanu informed the court that her witness had gone back to the office.

3. On 8th June 2018, the Appellant filed the Notice of Motion dated 8th June 2018 seeking an order that the court vary or set aside the ex-parte order made on 15th May 2018 directing that its case be closed and that the court re-open the hearing so as to allow it to call its witness, Ms Regina Ireri. The application was supported by affidavits of Doreen Kikanu, the Appellant’s advocate prosecuting the matter, and Regina Ireri, its witness who was to testify. It was opposed by Dennis Makori Mahinda, the advocate for the Respondent in the matter. The court considered the application, depositions and parties written submissions and dismissed the application.

4. For completeness, I reproduce the material parts of the ruling dated 21st September 2018, as follows;“I have considered the dictum of learned Justice Kimaru in Savings and Loans Limited v Susan Wanjiru Muritu – Nairobi (Milimani) HCCC No. 397 of 2002 on the duty imposed upon a litigant to attend court on the date his case is fixed for hearing. The learned Judge observed and I quote; ‘’a case belongs to a litigant and not to the advocate. He has a duty to pursue the prosecution of his case and to constantly check with his advocate the progress of the case.In the instant case the respondent and her advocate failed to give necessary attention to the hearing and final determination of this case and chose to engage in other important matters. The applicant has not come to court with clear hands. Counsel for the applicant also failed to inform her colleague about her whereabouts and she attempted to delude this court that she did so which is denied by the respondent as paragraph 12 of the replying affidavit sworn by Dennis Makori Advocate. This is unacceptable. There must be an end to litigation …………As earlier mentioned litigation has to come to an end for all intents and purposes, one cannot purport to litigate forever. It is clear from the history of the matter that the applicant has not been keen and willing to have this matter expeditiously heard and disposed. This is a contributing factor to backlog of cases which this court is reluctant to encourage ………"

5. The learned magistrate then concluded that:“[I] am satisfied that the applicant has been sluggish in prosecuting this case. There has been inordinate delay and lack of vigilance by the applicant. Litigation must come to an end. Delay defeats equity. In the result and all the circumstances considered, I find the application dated 8th June 2018 lacks merit and the same is dismissed with costs to the defendants ……."

6. The Appellant has challenged the ruling on the basis of the Memorandum of Appeal dated 15th October 2018 setting out thirteen grounds of appeal. The appeal is opposed. It was canvassed by written submissions with both sides taking different positions. Based on the submissions, the issue for resolution is whether the trial magistrate exercised his discretion properly in light of the facts and circumstances of the case. In this regard, there is no dispute that in exercising appellate jurisdiction, this court is bound by the principle that it should not interfere with the exercise of discretion unless it is shown that the trial court misdirected itself on points of law, misapprehended the facts, took into consideration irrelevant matters or failed to take into account relevant matters or looking at the decision as a whole, it was plainly wrong (see United India Insurance Company Limited and 2 Others v East African Underwriters (Kenya) Limited NRB CA Civil Appeal No. 36 of 1983 [1985] eKLR and Mbogo v Shah [1968] EA 93).

7. The parties’ arguments revolve around what took place on the material day when the matter was initially called out earlier in the morning and fixed for hearing at 1. 00pm. The Appellant’s case was that her advocate and witness, having informed the counterpart, stepped out for a health break and when they returned the matter was proceeding. The Appellant’s advocate contended that if the matter proceeded in her absence, it was due to her inadvertence as she had not anticipated that the matter before her would have been finalized quickly. She stated that she acknowledged her mistake and filed the application on 8th June 2018 to vacate the orders. The Plaintiff states that the only witness left was to produce receipts in order to prove damages.

8. The Respondent opposes the appeal. It contends that when the court allocated the matter for hearing at 11. 00 but due to the long cause list the matter was reached at 1. 00pm. It states that the court indicated the matter would be heard and that the parties should wait in court. When the matter was called at about 1. 00pm, neither the Plaintiff’s witness nor its counsel was present despite the court having indicated that the matter would be heard and the parties should wait to be reached. The Respondent points out the application to set aside was made one month after the orders were issued hence it was made after undue delay. It adds that the suit was filed in 2013 and is yet to be concluded and since the court had given the last adjournment on 2nd October 2018, it cannot be faulted for closing the Appellant’s case.

9. I have considered the parties’ submissions including the authorities cited by the parties. I hold the substance of the application before the Subordinate court was, in substance, to set aside ex-parte orders. In exercising this discretion, the court strives to do justice to the parties. This is in line with the overriding objective in sections 1A and 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) and the dictates of Article 159 of the Constitution which enjoins this court to do justice without regard to undue technicalities. In this respect I think the decision in Shah v Mbogo [1967] EA 116, captures the wide discretion of the court in such circumstances. Harris J., stated as follows:“The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or errors, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to abstract or delay the cause of justice."

10. Turning to the decision of the trial court, whose material contents I have set out above, I hold that the trial magistrate failed to take into account the specific circumstances that led to the Appellant’s advocate and witness not being in court at 1. 00pm when the matter was called. The trial magistrate appeared to be more concerned about the broader aspects of delay. First, the trial magistrate stated that the Appellant and her advocate had failed to give the matter necessary attention. Second, that the Appellant had not been willing to dispose of the matter hence creating backlog and third there was inordinate delay and lack of vigilance in prosecuting the case.

11. The trial magistrate’s conclusions are not borne out by the record. Although the matter has taken some time to be heard, the fact is that the Plaintiff’s three witnesses were heard on 12th March 2018 and the final witness, who was stood down, was ready for hearing on 15th May 2018. On the material day, the Advocate and witness were present in court and were ready to proceed but for the fact that they were not in court at 1. 00pm when the matter was called out.

12. Regarding the absence of the witness, the trial magistrate stated that they, ‘’chose to engage in other important matters’’. This is clearly a mischaracterization of what happened. The court did not consider the explanation by the Appellant’s Advocate and witness that they both went out for a health break. While counsel for the Respondent denied that the Appellant’s Advocate informed him that she was stepping out, the court did not consider whether this explanation was plausible or reasonable in view of the deposition by Mr Makori that, ‘’the court had not taken a break since 9:00am and was willing and ready to hear us. So why would the plaintiff’s advocate take a break when the court had not taken one and had earlier directed that it will hear us.’’ He further urged that both the Appellant’s counsel and witness did not state whether they had a medical condition that would have necessitated the alleged health break.

13. Considering that the court had been sitting since 9. 00am, it would be not only unfair but also a violation of parties’ access to justice to expect parties to sit in court without taking a health break until the court rises. Parties who come to court expect that the court will be reasonable in accommodating normal health breaks which include bathroom, lactation, body stretching and food breaks which make the court experience comfortable. Further, a party need not be sick or have a medical condition to take a health break nor is a party required to disclose to another its medical condition unless it is necessary. What is important is for the court to give parties an opportunity to take a health break from time to time as they wait for their matters to be heard.

14. The reason given by the Appellant is not implausible since the court had been sitting since 9. 00am. The trial magistrate did not even consider that when the defence hearing started, counsel for the Appellant and the witness came into court. The Respondent, as para. 7 of its advocates deposition in opposition to the application, admits that when the Appellant counsel came to the court and attempted to explain her absence and urge the court to set aside the order, he opposed the application and the court directed the matter proceed. The oral application by the Appellant’s counsel is not reflected on the record. Nor does the trial magistrate recognize the fact that he Appellant’s advocate and witness came to and were present in court after 1. 00pm. This undermines the finding that the Appellant was intent on delaying the matter.

15. This is a case where three witnesses had testified on behalf of the Plaintiff. The last witness was coming to produce evidence to support special damages. It is not a case which, if re-opened, the Plaintiff would be re-litigating the entire case afresh. Any prejudice in the circumstances would have been assuaged by an award of costs. I also do not consider that the application was filed after undue delay as the matter had been fixed for submissions and the application was in fact filed prior to that date.

16. It is clear from the ruling that the trial magistrate failed to consider and take into account relevant matters and in particular the specific circumstances as to why the counsel and witness were not in court at 1. 00pm when the matter was called out. The court in effect punished the Appellant for the case being old one and for the need to clear backlog. This was wrong exercise of discretion and the court is constrained to intervene by allowing the appeal.

17. For the reasons I have set out, I allow the appeal and order as follows:(a)The ruling and order of the Subordinate Court dated 21st September 2018 be and is hereby set aside and substituted it with an order allowing the Appellant’s application dated 19th June 2018 to the extent that the ex-parte order and the proceedings subsequent to the order dated 15th May 2018 be and are hereby set aside set aside.(b)The Appellant shall be at liberty to call its final witness whereupon the defence case shall proceed for hearing.(c)This matter shall be dealt with expeditiously.(d)The Respondent shall pay the costs of this appeal and the application before the Subordinate court assessed at KES. 30,000. 00.

SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY 2022. J. MULWAJUDGEinstructed by Simba and Simba Advocates for the Appellant.instructed by Macharia Mwangi and Njeru Advocates for the Respondent.