[2017] KEHC 1401 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 250 OF 2014

RAKESH ANAND...................................................APPELLANT

-V E R S U S –

ROBERT NZUMA JOHN.............................1ST RESPONDENT

NAHASHON IMAASIA MWASI.................2ND RESPONDENT

(Being an appeal from the judgement and decree delivered on behalf of Hon. T. S. Nchoe (Mr) on 18th June 2014 in Nairobi CMCC No. 7925 of 2010)

JUDGEMENT

1) Robert Nzuma John, the 1st respondent herein, filed an action before the Chief Magistrate’s Court against Rakesh Anand and Nahashon Imaasia Mwashi, the appellant and 2nd respondent respectively vide the plaint dated 29. 11. 2010. In the aforesaid plaint, the 1st respondent sought for general damages for the injuries allegedly sustained in a road traffic accident which occurred on 15. 12. 07 involving motor vehicle registration no. KAA 023S which was being driven by the 2nd respondent. The suit was fixed for hearing on 24. 1.2013. The appellant’s advocate was served with a hearing notice but failed to turn at the hearing hence, the suit proceeded for hearing exparte. On 3rd October 2013, judgment was delivered in favour of the 1st respondent in the sum of kshs.1,633,665/=. The 1st respondent proceeded to execute the decree by attaching the appellant’s household goods on 26th February, 2014. This action jolted the appellant to apply for the exparte judgement to be set aside before the trial court vide the motion dated 4. 3.2014. The trial magistrate heard the aforesaid motion and had it dismissed on 18th January 2014. Being dissatisfied the appellant preferred this appeal and put forward the following grounds:

1. The learned magistrate erred in finding that the matter was ready for hearing.

2. The learned magistrate erred in finding that pre trial was not necessary.

3. The learned magistrate erred in refusing to entertain the appellant’s defence on record.

4. The learned magistrate erred in exercising his discretion not to set aside the judgment.

2) When the appeal came up for hearing, learned counsels appearing in the appeal recorded a consent order to have the appeal disposed of by written submissions. I have considered the arguments and the material that were presented before the trial court. I have further considered the rival written submissions. On the first ground of appeal, the appellant submitted that it was the duty of the court to ensure that parties complied with the provisions of Order 11 of the Civil Procedure Rules before the case could proceed for hearing. The appellant urged this court to hold that the trial magistrate erred in finding that the matter was ready for hearing without looking at whether the parties had complied with the aforesaid order. The respondent pointed out that the trial magistrate did not err because under Order 3 rule 2(c ) of the Civil Procedure Rules, 2010, expert witnesses were precluded from doing witness statements.

3) Having considered the two divergent arguments, I am persuaded by the arguments put forward by the respondent. There is no dispute that expert witnesses are not compelled to make witness statements under Order 3 rule 2(c ) of the Civil Procedure Rules. This ground must therefore fail.

4) On the second ground of appeal, it is argued that the trial magistrate erred when he refused to entertain the appellant’s defence on record. It is clear from the record that the appellant had stated before the trial court in support it application to set aside the exparte judgment that his advocate’s receptionist had not diarised the hearing date and that the mistake being that of an advocate should not be visited upon the appellant. The trial magistrate did not find the explanation given to be plausible and proceeded to dismiss the application. Similar arguments have now been argued before this court on appeal. The 1st respondent has urged this court to reject this ground. It is pointed out that the appellant’s advocate was invited to the court registry for fixing a mutual hearing date but no representative was sent to take a date. The appellant’s advocate was subsequently served with a hearing notice but both the appellant and the advocate failed to attend court. It appears the appellant had failed to specifically identify that the diary belonged to the appellant’s advocate’s law firm thus creating some doubt in the mind of the trial magistrate. The appellant was expected to set the record straight on appeal but he failed to do so. For this reason, I cannot fault the decision of the trial magistrate.

5) The other important ground raised and argued on appeal is the question as to whether or not the trial magistrate should have considered the appellant’s defence in setting aside the exparte judgment. It is the appellant’s submission that his defence raised triable issues hence he should have been given an opportunity to be heard. The 1st respondent on the other hand is of the view that the defence put forward by the appellant raised no triable issues since there was an interlocutory judgment entered against the appellant’s driver, the 2nd respondent herein. With respect, I am persuaded by the argument put forward by the 1st respondent. There is no denial that the 2nd respondent was the appellant’s driver. It is also not in dispute that an interlocutory judgment was entered against the 2nd respondent thus settling the question of liability. No attempt has been made to upset the interlocutory judgment.

6) In the end, I find no merit in the appeal. It is dismissed in its entirety with costs to the respondent.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

......................for the Appellant

......................for the Respondent