[2021] KEELC 3079 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 283 OF 2017

(FORMERLY NAIROBI ELC 120 OF 2011)

RACHEAL NJANGO MWANGI(suing as personal representative of

the Estate ofMWANGI KABAIKU).........................PLAINTIFF/RESPONDENT

-VERSUS-

HANNAH WANJIRU KINITI...........................1ST DEFENDANT/APPLICANT

JOHN NJENGA WANJIRU..............................2ND DEFENDANT/APPLICANT

RULING

Through a Notice of Motion Application dated 26th August 2020, brought under Article 159 (2) of the Constitution of Kenya, Sections 1, 1A, 3, 63E of the Civil Procedure Act; Order 12 Rule 7, Order 22 Rule 22, Order 41 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules;the Judicature Act Chapter 8, the High Court (Practice and Procedure Rules Part 1 Rule 3), the Defendants/Applicants sought for the following orders;

1. This Honorable Court be pleased to set aside the ex parte hearing and any other subsequent proceedings which culminated into the Judgement in this matter.

2. This Honorable Court be pleased to review and set aside its Judgement and or order as against the 1st & 2nd Defendants delivered on 16th June 2020.

3. This Honorable Court grant the Defendants leave and or any opportunity to be heard and put their case and defend the position in the suit in the main hearing.

4. The costs of this application be provided for.

The Application is premised on the grounds that on 3rd August 2020,the Plaintiff/ Respondent sent a Notice to the Defendants/ Applicants requiring them to vacate the suit property within 30 days or face forcible removal. That the 1st Defendant/ Applicant is an elderly lady aged 84 years, who has lived on the property since 1952, and evicting her will be detrimental to her health and well-being, given that the Country is facing Covid 19 Pandemic.

In her Supporting Affidavit, the 1st Defendant/ Applicant, Hannah Wanjiru Kiniti, averred that the suit property belongs to her late father and that she obtained letters of administration dated 16th November 2000, under Kiambu Succession Cause No. 222 of 2000, to administer the suit property after her father’s death on 9th February 1979. She averred that she is still in possession of the initial Original title deed. That the Plaintiff’s/ Respondent’s late husband was allocated half of the suit property by her late father. That upon the death of her father, the Plaintiff's/ Respondent’s husband fraudulently obtained Letters of Administration under Kiambu Succession Cause No. 148 of 1999, and subsequently used the fraudulent Letters of Administration to transfer the suit property into her name.

Further that upon learning of the fraud, she instituted proceedings under Nairobi High Court Succession Cause No. 1198 of 2002,challenging the registration of the Plaintiff's/Respondent’s late husband on the title, and this suit was not initially brought to the attention of this Honorable Court. She further averred that she relied on her Advocate’s who let both the Court and herself down as a result which the evidence necessary to prove her case was not brought before the Court. That her then Advocates on record, informed her that the suit had been Stood Over Generally, because of the Covid-19 Pandemic, which information she found to be false, after Court had rendered the Judgment and the said Advocates wrote a letter to the Plaintiff/ Respondent’s Advocates admitting they were aware of the said hearing. She contended that they were unrepresented during the hearing of the suit, and it had come to their attention that the Advocate on record knew of the hearing date of this suit but did not take steps to inform them of the same.

That they had filed their Defence and Witness Statements and they could have testified and assisted the Court reach a just Conclusion and it is only just that the Defendants/Applicants are heard on a priority basis and that their grievances are remedied without delay .

The Application is opposed and Racheal Njango Mwangi, the Plaintiff/Respondent filed her Replying Affidavit dated 28th September 2020, and stated that proof was adduced by way of a Sale agreement dated 6th January 1969, which remains uncontested that her late husband bought the suit land and later legally filed the proceedings that gave him possession of the said property. Further that the Defendants/Applicants did not disclose that Summons for Revocation filed on 13th October 2009, in suit No. 1198/2002, seeking to revoke the grant to her late husband and subsequent transfer of Limuru/Bibirioni/T.355, to her was dismissed. That theHon. Justice Asenath Ongerion 29th November 2019, dismissed the Summons for revocation by the Defendants/ Applicants for want of merit for reasons that the suit property did not form part of the 1st Defendant’s/ Applicant’s Father’s estate and the Defendants/Applicants have neither appealed nor sought for review of the said orders. That the 1st Defendant/ Applicant is not the Administrator of her father’s Estate and the Defendants/Applicants have not adduced new and important material evidence that will change the facts as they are.

She further averred that the Defendants/ Applicants have failed to give a more serious and coherent reason why their advocate never attended Court and the assertion is an administrative issue in the realm of professional negligence, a remedial part that there is no evidence that has been followed by the Defendants/ Applicants, if only to lend credence to their assertion. That the hearing dates were taken by mutual Consent in open Court and thereafter during the proceedings, the Applicants Counsel tried to get in touch with her Advocates seeking an Out of Court settlement. That the 2nd Applicant has never missed a court session and did not stand up to Complain during the hearing.

It was her Contention that even if the Counsel had appeared, nothing would have changed the outcome, a fact buttressed by the Ruling on the Summons for revocation in 1198 of 2002. That she is advised by her Advocates that litigation must come to an end and the litigants allowed to enjoy the fruits of their Judgment.

Parties were directed to file Written Submissions and in compliance with the said directive, the Plaintiff/Respondent filed her Submissions on 16th November 2020, through the Law Firm of P.M Karanja &Associates. The Defendants/Applicants did not file any submissions.

The Court has considered the Application, the Affidavit in support, the Replying Affidavit, the written submissions relied upon and the provisions of law. The key question to be determined in this Application dated 26th August 2020 is whether the Defendants/Applicants have satisfied the criteria upon which the Court can exercise its discretion and allow the prayers sought for setting aside the exparte Judgment.

The instant Application seeks to Set Aside the Judgment delivered on 16th June 2020,against the 1st and 2nd Defendants/ Applicants. The guiding provision of law in setting aside Ex parte Judgment is to be found under Order 12 Rule 7 of the Civil Procedure Rules which provides:-

"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."

Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides:-

"The court may set aside an order made ex parte"

It is thus not in doubt that the Court has discretion to set aside or not to set aside an exparte judgment and that Such discretion must be exercised judiciously, while also ensuring that Justice has been done. The Court of Appeal in the case of James Kanyiita Nderitu & Another [2016] eKLR, stated thus:

“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one which is irregularly entered. In a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgement and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment, among others. See Mbogo & Another –vs- Shah (1968) EA 98, Patel –vs- E.A. Cargo Handling services Ltd (1975) E.A. 75, Chemwolo & Another –vs- Kubende (1986) KLR 492 and CMC Holdings –vs- Nzioka [2004] I KLR 173.

In an irregular default judgment, on the other hand; judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”

The Court must then first determine whether what was entered herein was a regular or irregular judgment.

It is not in doubt that the Defendants/ Applicants after being served with Summons to enter appearance, duly entered appearance and filed their documents. That the Applicants were represented by G.M Muhoro & Company Advocates. When the matter came up for hearing on 1st October 2019,the Defendants/ Applicants were absent . Further the Court notes that from the proceedings, when the hearing date was given in Court on 3rd July 2019, the Defendants/ Applicants were equally absent. However, the Plaintiff/Respondent through her Advocates produced in Court an Affidavit of Service that evidenced that the Defendants/Applicants were duly served with the Hearing Notice. The Defendants/ Applicants have also acknowledged that their Advocates knew of the hearing date. A litigant’s Advocates is her agent and acts on their behalf and it is therefore not in doubt that the Judgment was regular and well in order as the Defendants/ Applicants failed to appear in Court.

The Court having found and held that service of summons were properly served on the Defendants/Applicants and that the Judgment was regular, then Court must determine whether or not the Defendants/ Applicants have given a justifiable cause for non-attendance and or whether their Defence raises any triable issue.

Order 12 Rule 7 of the Civil Procedure Rules provides 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. The power to set aside ex parte orders are discretionary, and the Court must use its discretion to come to a conclusion while also ensuring that Justice has been done. The Court in Patel….Vs….E.A Cargo Handling Services Ltd (1974) EA 75, held that:-

“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the Court is to do Justice to the parties and the court will not impose conditions on itself to feter the wide discretion given to it by the Rules.’’

The Defendants/ Applicants have put the blame at the doorstep of their former Advocates. They have contended that even though their Advocates knew of the date of the hearing, he never informed them of the same and thus they could not have attended the hearing. Further that they have filed all their document and they are ready to give evidence. This Court is always skeptical of parties that seek to blame their Advocates and fail to produce any evidence that they have taken any steps to make the said Advocate liable for their negligence. The Court recognizes that a case belongs to a party and it is upon that party to follow up on their case and once a party appoints an Advocates, the party then becomes liable for the actions of the said Advocates who was acting on their behalf

However, in this instant, the Court acknowledges that the hearing of the suit was in late2019 and the Judgment was delivered in June 2020, during the Covid-19 Pandemic. Further that the instant Application was filed on 1st September 2020, and therefore there was no inordinate delay in bringing the Application. The same coupled with the fact that the Plaintiff/ Respondent has acknowledged that the 2nd Defendant/Applicant has always been attending Court in person, the Court is thus satisfied that the Defendants/ Applicants who have always been attending Court, could not be trying to delay the Course of justice. Therefore, the reason for non-attendance may be justifiable as the parties were not present when the hearing date was given.

Further, the Court is also called upon to determine whether the defense raises a triable issue. It is not in doubt that Judgment was entered for the Plaintiff/ Respondent on the basis of the title deed she held. In their Defence, the Defendants have stated that the 1st Defendant’s/Applicant’s late father did not sell the suit property to the Plaintiff’s/Respondent’s husband. Whether or not a sale occurred is a triable issue, that ought to be determined by Court, as a title held by a party can be impugned if the same did not follow due process. Therefore, this Court finds and holds that the Defendants/ Applicants have a Defence with a triable issue. Consequently, the court finds and holds that since the Defence herein raises triable issue, then and the Defendants should be given their day in Court.

The Court further finds and holds that having given a satisfactory explanation for non-attendance, and the fact that the Defence raises a triable issue, the Defendants/ Applicants have satisfied it, to enable it exercise its discretion in their favour. It is however, not lost to the Court that the instant suit is a 2011, matter and that the parties have taken too long in the Judicial system. However, an opportunity ought to be given to the Defendants/ Applicants to ventilate their issues and the matter be heard on merit. The Plaintiff/ Respondent will not suffer any prejudice as she can be compensated by way of costs.

It was the alleged negligence by the Defendants/ Applicants Advocates who were acting on their behalf that got us here. It is therefore the Court findings that the Defendants/ Applicants ought to pay throw away costs of Kshs. 30,000/= to the Plaintiff/ Respondent.

The Upshot of the foregoing is that the Defendants/ Applicants have met the threshold to warrant the Court to exercise its discretion in their favour and consequently the Defendants/Applicants are entitled to the setting aside of the Ex parte Judgment.

Having now carefully read and considered the instant Notice of Motion Application, the affidavits and annextures thereto together with the written submissions, the Court finds that the Notice of Motion Application dated 26th August 2020, is merited and the same is allowed. The Defendants/ Applicants are directed to pay the Plaintiff/ Respondent throw away costs of Kshs.30,000/= before the date of the hearing, in default the Defendants/Applicants will have no audience of the Court.

Further, the suit herein being an old matter will be given a hearing date on priority basis.

It is so ordered

DATED, SIGNED AND DELIVERED AT THIKA THIS 4TH DAY OF JUNE 2021.

L. GACHERU

JUDGE

4/6/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. P. M. Karanja for Plaintiff/Respondent

No appearance for the 1st Defendant/Applicant

No appearance for the 2nd Defendant/Applicant

L. GACHERU

JUDGE

4/6/2021