[2020] KEHC 1296 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS APPLICATION NO. 18 OF 2020

PMM..........................................................................APPLICANT

VERSUS

JNW........................................................................RESPONDENT

RULING

1. What is for determination is a Notice of Motion application dated 5th June, 2020 filed under Certificate of Urgency and brought under sections 1A, 1B, 3and 3A of the Civil Procedure Act, Order 45and Order 51, rule 1 of the Civil Procedure Rules,and all other enabling provisions of the law in which the Applicant seeks for orders that:

a. Spent.

b. Spent.

c. Spent.

d. This honourable court be pleased to set aside the proceedings and subsequent orders entered against the Applicant on 4th June, 2020 and all other consequential orders thereto.

e. This honourable court be pleased to reinstate the application dated 30th January, 2020 and filed on 31st January, 2020 for disposal on merit.

f. The costs of this application be provided for.

2. The application is supported by the grounds on the face thereof and the affidavit sworn by the Applicant on 5th June, 2020 in which he avers that the court condemned him unheard by allowing the Respondent’s application dated 30th January, 2020 at the hearing date of 4th June, 2020 in the absence of himself and his advocates on record.

3. According to the Applicant, upon being served with the application dated 30th January, 2020 he instructed his Advocates on record to represent him in the matter. He averred that he consequently swore an affidavit in reply thereof which affidavit was filed electronically on 2nd June, 2020 pursuant to the Practising directives issued in light of the Covid-19 pandemic. He urged that this court was thereafter duty bound to give directions on how the Respondent’s application would proceed and further share the access links to the virtual hearing in advance. He conceded that the Respondent’s Counsel on record had vide a letter dated 14th February, 2020 invited his Advocates on record to meet at the Court registry for purposes of fixing a hearing date for the application dated 30th January, 2020.

4. The Applicant asserted that upon filing his replying affidavit, his Advocates on record unsuccessfully sought directions on how the Respondent’s application would proceed. That later on 4th June, 2020 the court, upon hearing the Respondent, treated the application as unopposed and allowed it in the terms prayed.

5. According to the Applicant, his replying affidavit dated 30th May, 2020 raises weighty issues of law and fact which ought to be tried on merit. He urged that despite taking necessary steps to ensure that his affidavit was filed in time, he was condemned unheard for mistakes that were not attributable to himself or his Advocates on record. That had the court perused his affidavit and the annexures thereto, it would have been persuaded otherwise.

6. The Applicant asked the court to allow his application stating that to do otherwise would occasion him suffering and violate his constitutional right to be heard and go against the rules of natural justice.

7. In opposition, the Respondent filed a replying affidavit sworn by herself on 8th September, 2020 in which she asked the court to dismiss the instant application with costs in the interest of justice and the best interest of the child who is the subject of these proceedings.

8. The Respondent echoed the Applicant’s statement that the Respondent’s Advocates on record vide a letter dated 14th February, 2020 invited the Applicant’s Advocates on record to attend the Family Division registry for purposes of fixing a hearing date to the application dated 30th January, 2020. That on 25th February, 2020 the Applicant’s Advocates on record sent their representative and the hearing of the application dated 30th January, 2020 was fixed for 4th June, 2020.

9. According to Respondent, the Applicant never filed or served her with his response to the application dated 30th January, 2020 and his claim of having filed a response is unsubstantiated. That it is on this basis that the court on 4th June, 2020 allowed the application. In the Respondent’s view, the instant application is an afterthought meant only to frustrate the cause of justice against the best interest of the child the subject of these proceedings. The Respondent accused the Applicant of being indolent, stating that the Applicant had not pursued the matter diligently. That as such, a court of equity ought not to come to his aid.

10. The Respondent urged that since she and the subject child have relocated to Nairobi, it is only fair and just that Nakuru Children’s Case No. 148 of 2018 be transferred to the Nairobi Children’s Court at Milimani Law Courts as prayed in her application of 30th January, 2020.

11. The instant application was disposed of by way of written submissions. Learned Counsel Ms. Mukira filed written submissions dated 11th September, 2020 on behalf of the Applicant whereas Ms. Masaki filed written submissions dated 8th September, 2020 on behalf of the Respondent.

12. Ms. Mukira conceded that representatives for both parties visited the court registry and together fixed the application dated 30th January, 2020 for inter parteshearing on 4th June, 2020. She however submitted that due to the pandemic, the Applicant was unable to prepare his response thereto sooner because the Advocate’s offices were closed due to the Covid-19 pandemic. Further that since the Applicant’s Advocates physical offices are within Nakuru County they were further affected by the lockdown that was imposed in Nairobi County during the said period.

13. It was Ms. Mukira’s submission that on 2nd June, 2020 she filed the Applicant’s replying affidavit in contemplation of the hearing of 4th June, 2020 after which she sought directions on how the matter would proceed for hearing. That no directions were however forthcoming from the court’s registry. As such, the hearing proceeded ex-parteon 4th June, 2020 during which time the court allowed the application dated 30th January, 2020 under the impression that it was unopposed. Counsel accused the court registry of failing, neglecting and refusing to place the affidavit in the court file and sharing the link for the virtual court hearing. She however stated that this may have been attributable to the teething problems of migration from physical to electronic filing.

14. According to Ms. Mukira, in light of these circumstances, the court ought to exercise its discretion and reinstate the application dated 30th January, 2020 for determination on merit in line with the overriding objective provided under section 1A of the Civil Procedure Act stating that section 3Aof the Civil Procedure Actgrants the court inherent power to make such orders. To buttress this argument, Counsel cited the decision in Esther Wamaitha vs. Safaricomwhich was cited with approval in James Mwangi Gathara & Another vs. Officer Commanding Station Loitoktok & 2 others [2018] eKLR and submitted that the blunder of the court registry should not result in denying the Applicant a right to be heard.

15. In rebuttal, Ms. Masaki submitted that the Applicant had sought stay of execution, but had not substantiated the legal basis thereof. Counsel contended that while the Civil Procedure Rules, 2010provides extensive instances where a party can ask for a discretionary order of stay, the only provision that speaks to the Applicant’s case is Order 22, rule 52thereof. Counsel asserted that stay under the rule is however time bound. That the drafters of the section foresaw an instance where a Judgment Debtor would seek an indefinite Stay of Execution to deny Decree Holders the fruits of their judgments.

16. Ms. Masaki further submitted that neither the Applicant nor his Advocates on record had presented sufficient reasons for their non-compliance or non-attendance of court. That only upon satisfying that he had good and sufficient cause would the Applicant be deserving of an order setting aside the orders of 4th June, 2020. To this end, Counsel cited the decision in The Registered Trustees of the Archdiocese of Dar es Salaam vs. The Chairman Bunju Village Government & Othersand Wachira Karani vs. Bildad Wachira [2016] eKLR.

17. Ms. Masaki contended that what is contested herein is not whether the setting aside of orders is discretionary but rather, whether the Applicant has demonstrated “sufficient cause” to warrant the exercise of the court’s discretion in his favour. She urged that the reasons given for why the Applicant did not file his response in time does not qualify as a ‘sufficient reason’.

18. It was Ms. Masaki’s assertion that this court after satisfying itself that the Applicant herein had not filed their response, and that the Applicant was aware of the hearing date, proceeded to hear the Respondent’s application dated 30th January, 2020 and issued orders, the Applicant’s absence notwithstanding. Counsel urged that this was proper and in accordance with the law as Order 12, rule 2(a)of the Civil Procedure Rulessanctions the Court in the issuance of such ex parteorders. That the orders cannot therefore be disturbed save with the production of sufficient and overwhelming reasons.

19. Ms. Masaki submitted that in examining an application for setting aside ex parteorders, the court ought to be guided by Order 10, rule 11 of the Civil Procedure Rules. Counsel contended that the instant application offends the Oxygen principles as set out under Section 1Aof the Civil Procedure Act on expeditious resolution of disputes. To this end, Counsel cited the decision in Gideon Mose Onchwati vs. Kenya Oil Co. Ltd & Another [2017] eKLR.

20. The law on setting aside of ex parte orders is found under Order 12, rule 7 of the Civil Procedure Rules, 2010which provides thus:

“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.”

This provision is amplified by Order 51, rule 15which provides that the court may set aside an order made ex parte.

21. The application dated 30th January, 2020 sought the transfer of Children’s Case Number 148 of 2018 filed in the Chief Magistrate’s Court at Nakuru to the Nairobi Children’s Court at Milimani Law Courts. Judgment was pronounced over the Children’s Case at Nakuru but the Respondent, who was the decree holder therein, states that she was unable to execute the judgment against the Applicant herein, since the Applicant could not be traced. The Respondent averred that she has since relocated to Nairobi an act which prompted her to file the application dated 30th January, 2020 seeking to have the Nakuru Children’s Case transferred to the Children’s Court at Milimani Law Court. She contended that the application was in the best interest of the subject child and further that the Applicant herein would not suffer prejudice if the orders were granted.

22. A cursory glance at the replying affidavit dated 30th May, 2020 filed hereto which bears the stamp of the Family Division Registry dated 10th June, 2020, reveals that it raises substantial issues. At this point in time, however, I will not venture into the merits and demerits of the issues raised therein. At the virtual hearing of 4th June, 2020 the affidavit was however not on record. Additionally, neither the Applicant nor his Advocates on record were present at the virtual hearing.

23. Bearing in mind that the application dated 30th January, 2020 was duly served upon the Applicant and the hearing date taken by consent, the court proceeded to treat the application as unopposed and consequently allowed it in the terms prayed, namely that the Nakuru Children’s Case No. 148 of 2018 be transferred to the Children’s Court at Milimani Law Courts, Nairobi.

24. Upon knowledge of the ex parteorder, the Applicant filed the instant application in which he asked the court to set aside the ex parteorder and reinstate the application dated 30th January, 2020.

25. In setting aside ex parte orders, the court must be satisfied of one of two things, namely, either that the respondent was not properly served with summons or that the respondent failed to appear in court at the hearing due to sufficient cause. (See – Philip Ongom, Capt vs. Catherine Nyero Owota Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003)).

26. In the instant case, the Applicant herein was properly served with the application dated 30th January, 2020 and the hearing date of 4th June, 2020 was taken by consent of the parties. The pertinent question therefore is whether the Applicant’s non-compliance with respect to filing his replying affidavit in due time and non-attendance of court on 4th June, 2020 constituted an excusable mistake, or was meant to deliberately delay the cause of justice, and whether the explanation given for these failures qualifies as sufficient cause.

27. In Ongom vs. Owota (supra) the Court stated thus:

“…However, what constitutes “sufficient cause”, to prevent a defendant from appearing in court, and what would be “fit conditions” for the court to impose when granting such an order, necessarily depend on the circumstances of each case.”

28. In the case of The Registered Trustees of the Archdiocese of Dar es Salaam vs. The Chairman Bunju Village Government & Others Civil Appeal No. 147 of 2006, the Court of Appeal of Tanzania while deliberating on what constitutes sufficient cause opined thus:

“It is difficult to attempt to define the meaning of the words “sufficient cause.” It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputable to the Appellant.”

29. In the instant case, I am of the considered view that the explanation advanced by the Applicant for his failure to file his replying affidavit dated 30th May, 2020 in due time and further to attend the virtual hearing of 4th June, 2020 is reasonable and excusable. This is so especially due to the Covid-19 pandemic which has gripped the world for the better part of the year 2020, and with respect to our Country Kenya since March 2020 when the first positive case was confirmed. This saw the Courts suspend operations for a given period while Standard Operating Procedures to be employed during these unprecedented times were being formulated.

30. Additionally, the email thread annexed to the Applicant’s Affidavit dated 5th June, 2020 sworn in support of the instant application demonstrates that the replying affidavit was filed on 3rd June, 2020 upon payment of the filing fee. On the said date, the Applicant’s Advocates wrote to the Family Division through the official email address seeking directions on how the hearing of the matter would proceed on 4th June, 2020. On the said 4th June, 2020 the Applicant’s Advocates wrote a follow up email to the Family division at 10. 21 a.m. in which they indicated that they were yet to receive directions on how the hearing would proceed, and sought further directions thereto. I note in passing that while the Applicant had indicated that the affidavit was filed on 2nd June, 2020 it is noteworthy that on the said date the affidavit was only presented for assessment of filing fees which was then paid on 3rd June, 2020.

31. It is therefore evident that the Applicant, through his Advocates on record, made an effort to file his replying affidavit before the hearing date and to be present at the virtual hearing of 4th June, 2020. In the circumstances thereof, it would be unjust and a miscarriage of justice to deny the Applicant a chance to advance his case when as demonstrated, he has expressed a desire to be heard on the application dated 30th January, 2020. The right to be heard is a well-protected right in our Constitution and is also the cornerstone of the rule of law. This right should therefore not be taken away by the strike of a pen, where sufficient cause has been shown. (See - Richard Ncharpi Leiyagu vs Independent Electoral Boundaries Commission & 2 Others Civil Appeal No. 18 of 2013 [2013] eKLR).

32. In the circumstances of this case, the Applicant is not wholly to blame for the delay in filing his replying affidavit dated 30th June, 2020 or his failure to attend the virtual hearing of 4th June, 2020 having given sufficient explanation thereof. The court must not oust the Applicant from being heard for no absolute fault of its own. This is especially so, in a case such as this where the subject matter concerns a child. The court is under a duty to make orders that will advance the best interest of the child which is paramount. To do so, it is important that the court appraises the arguments advanced by the respective parties on both sides in order to weed out mischief and malice, if there so be, on either party’s part, and determine the application on merit.

33. This court exists to serve substantive justice for all parties to a dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter. This is the fundamental principle of natural justice. (See – Wachira Karani vs. Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR).

34. Based on the foregoing, I am persuaded that the application dated 5th June, 2020 has merit and consequently it is hereby allowed. The orders of this court made on 4th June, 2020 are hereby set aside and the application dated 30th January, 2020 is hereby reinstated for hearing and determination on merit. Costs shall be in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED IN VIRTUAL COURT THIS 2ND DAY OF DECEMBER, 2020.

...........................

L. A. ACHODE

HIGH COURT JUDGE

In the presence of……………………………………………Advocate for the Applicant.

In the presence of………………………………………........Advocate for the Respondent.