[2022] KEHC 2514 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

JR. APPLICATION NO. 98 OF 2020

REPUBLIC..........................................................................................................................................APPLICANT

-VERSUS-

THE COUNTY SECRETARY NAIROBI CITY COUNTY...............................................1ST RESPONDENT

CHIEF OFFICER, FINANCE/COUNTY TREASURER NAIROBICITY COUNTY...2ND RESPONDENT

-AND-

WAYRREN ENTERPRISES LIMITED......................................................................EX PARTE APPLICANT

JUDGEMENT

1. The ex-parte Applicant (hereinafter “the Applicant”) moved this court in an application brought by way of Chamber Summons dated 12th May, 2020, wherein it was seeking leave to apply for an order of mandamus to compel the Respondents to satisfy the Certificate of Order in Milimani CMCC No. 5591 of 2018, together with interest thereon at the rate of 25% per annum from 13th September, 2013 until payment in full. The Applicant also sought an order that the costs of the application be provided for.

2. On 13th May 2020, the court directed the Applicant to file a supplementary affidavit annexing a certified copy of the judgment delivered on 26th April 2019 in Milimani CMCC No. 5591 of 2018 which was the basis of the application for leave, within thirty (30) days which he failed to comply with. The court went ahead and dismissed the Chamber Summons dated 12th May, 2020 with no orders as to costs as the Applicant had not demonstrated an arguable case for the grant of leave.

3. Aggrieved by that decision, the Applicant moved this court vide an application dated 2nd September, 2020 seeking for ORDERS:

1. THAT this Honourable Court be pleased to stay, set aside, vary and/or review its order made on 13th July, 2020.

2. THAT this Honourable Court be pleased to enlarge time for the Applicant to file a Supplementary Affidavit as directed by the Court on 13th May, 2020.

3. THAT the costs of this application be in the cause.

4. The application is supported by the grounds set out on the face of the application together with the Supporting Affidavit of Berline Odhiamboof even date. The main ground for the application is that since the court’s order of 13th May, 2020, the Applicant applied for a certified copy of the judgment in Milimani CMCC No, 5591 of 2018 but due to the Covid-19 pandemic, courts were operating remotely and it was extremely difficult for any litigant to be served as before. It was averred that the difficulty in obtaining the judgment was also coupled by the e-filing system and the challenges in technology. Furthermore, that the orders made on 13th July, 2020 were made ex partebecause there was no communication from court. Indeed, it was contended that the proceedings herein are about enforcement of a decree issued by the lower court which the Respondents fully participated in but never lodged an appeal to the High Court. It was therefore urged that it would be in the interest of justice that the order of 13th July, 2020 be set aside, varied and or reviewed to enable the Applicant ventilate their claim against the Respondents.

Responses

5. The Respondents opposed the motion through the Replying Affidavit of Erick Odhiambo Abwao sworn on 28th October, 2021. The deponent is the Assistant Director, Legal Affairs Nairobi City County. He deponed that no reason has been advanced by the Applicant for extension or enlargement of time within which to file a supplementary affidavit as directed by this Honourable Court on 13th May, 2020 neither has the said supplementary affidavit been annexed in order for the court to have a look at the draft.

6. It was further his deposition that the Applicant’s Chamber Summons was dismissed for failure to comply with procedural rules and after-all, the Applicant is guilty of laches in making the application for review. It is urged that the Applicant has not given detailed steps taken and difficulties that she encountered in looking for and procuring a judgment in the lower court. Furthermore, that the application for leave was in direct contravention of Order 53 of the Civil Procedure Rules and review of the orders shall be in vain as the Applicant does not have a copy of the judgment at hand yet neither does she have a copy of the decree and it is even harder to tell whether the Applicant obtained a Certificate of Order against the Government. He therefore urged that the application be dismissed for lacking merit.

7. In a rebuttal, the Applicant filed a Supplementary Affidavit sworn by Berline Adhiambo on 16th November, 2021. She reiterated that the order made on 13th July, 2020 was made without hearing any of the parties herein and urged court to take judicial notice that the Covid-19 pandemic occasioned untold interruptions to the court operations which made it extremely difficult for the courts to run its operations effectively. She also urged that the Respondents would not suffer any prejudice if the application is allowed.

Parties Submissions

8. The Applicant filed written submissions dated 16th November, 2021. Counsel submitted that the jurisdiction of the court to review or set aside is wide and unfettered but that discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error as was held by the East African Court of Appeal in Shah v Mbogo & Another (1967) EA 116. Counsel also relied on the case of Philip Chemowolo & Another v Augustine Kubende (1982-88) 1 KAR 103 for the proposition that because a mistake has been made, a party should not suffer the penalty of not having his case heard on merit. Counsel therefore urged that their application be allowed as prayed.

9. The Respondents on the other hand filed written submissions dated 22nd November, 2021. Counsel submitted that the Applicant is not deserving of any more leniency or discretion of the court. After all, no judgment has been obtained yet and the two letters dated 26th May, 2020 and 28th August, 2020 are not enough to prove effort. Counsel also argued that the Applicant has not explained the reasons for failing to attend court on 13th July, 2020 despite the fact that there were clear directions on 13th May, 2020. It is contended that annexing a judgment goes to the core of execution proceedings which is the main issue in this matter and that has not been done and reinstating of the chamber summons for leave will serve no purpose hence the orders of court made on 13th July, 2020 should be maintained.

10. To buttress his argument, counsel cited the case of Elosy Murugi Nyaga v Tharaka Nithi County Government, Meru ELC No. 19 of 2010. In any event, counsel argued that court became functus officio after pronouncing its judgment on 13th July, 2020 hence has no jurisdiction to handle the matter and set aside the dismissal order.

Analysis and Determination

11. I have considered the arguments advanced by both parties herein. The main issue for determination is whether the court order of 13th July, 2020 should be stayed, set aside and or varied and secondly, whether the time for filing a Supplementary Affidavit annexing a copy of the judgment should be enlarged.

12. I will address the question on setting aside the order of 13th July, 2020 first, as should the answer thereto be in the negative, then there would be no room to delve into the second issue. 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.”

13. This provision is amplified by Order 51, rule 15which provides that the court may set aside an order made ex parte and the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex parte are well settled.

14. In Stephen Ndichu v Monty’s Wines and Spirits Ltd [2006] eKLR,the court held as follows:

“The principles governing the exercise of judicial discretion to set aside ex parte judgments are well settled. The discretion is free and the main concern of the court is to do justice to the parties before it (See Patel –vs- E.A. Cargo Handling Services Ltd (1974] E.A.75). The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah –vs- Mbogo [1969] E.A.116). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration – vs- Gasyali [1968] E.A. 300). It also goes without saying that the reason for failure to attend should be considered.”

15. Similarly, in Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubede (1982-1988) KAR, the Court held:

“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties”

16. In dispensing justice, the courts are also guided by Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. The emphasis is on substantive justice rather than procedural technicalities, as well as the just, efficient, and timely resolution of cases.

17. In the instant case, the Applicant was granted leave by the court on 13th May, 2020 to put in a supplementary affidavit annexing the judgment in Milimani CMCC No, 5591 of 2018 which is the subject of these execution proceedings. When the matter came up for hearing on 13th July, 2020, none of the parties were present in court and the suit was thereby dismissed as the Applicant had not demonstrated an arguable case for the grant of leave. In other words, the Applicant had not complied with the court orders of 13th May, 2020.

18. The Applicant has argued that he was unable to comply with the said orders because there was no communication from court as such, the matter was dismissed without its knowledge on 13th July, 2020 prompting the instant application. The Respondents on the other hand are of the view that the Applicant is guilty of laches and are not deserving of the court’s leniency once again.

19. While I am cognizant of the fact that courts were operating remotely during the Covid-19 outbreak, I also note from the record that a ruling was delivered on 13th May 2020 but the same was inadvertently sent to a different advocate in another suit and there is nothing to show that the directions of 13th May, 2020 were indeed sent to the Applicant’s advocates on record and the lapse from the end of the court renders the delay in filing the instant application excusable. I also hold the view that it would be unjust and indeed a miscarriage of justice to deny a party who has expressed the desire to be heard the opportunity of prosecuting his case resulting from accident, inadvertence and excusable mistake or error.

20. I agree with the holding of the Court of Appeal in Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR where it was held as follows:

“22]. The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.”

21. Section 3A of the Civil Procedure Act provides that “Nothing in this Act shalllimit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

22. The fundamental duty of the court is to do justice between the parties and that parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. The proceedings herein are in respect to enforcement of a decree issued by the lower court which the Respondents fully participated in but never lodged an appeal to the High Court and in the circumstances, it would be in the interest of justice that the order of 13th July, 2020 be set aside, varied and or reviewed to enable the Applicant ventilate its claim against the Respondents.

23. On the second issue, the Applicant has sought enlargement of time to file a supplementary affidavit as directed by the court on 13th May, 2020. The Supreme Court in the case of County Executive of Kisumu v County Government of Kisumu & 8 Others (2017) eKLR held that:-

“23] It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as:

“the under-lying principles that a Court should consider in exercise of such discretion:

1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents if the extension is granted;

6. Whether the application has been brought without undue delay; and

7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

24. The reason advanced by the Applicant for the delay in filing its supplementary affidavit was because of the difficulty in obtaining a certified copy of the judgment in Milimani CMCC No. 5591 of 2018 due to the Ministry of Health protocols on Covid-19 pandemic and the resultant remote court operations coupled with the e-filing system and the challenges in technology. Whereas more diligence would have been expected of the counsel for the Applicant to follow up on the judgment in the lower court, I note that the suit was filed in September 2020 and there are on record two letters dated 26th May, 2020 and 28th August, 2020 addressed to the Chief Magistrates Court, Milimani Commercial Courts seeking to obtain the ruling in CMCC No, 5591 of 2018 delivered on 26th April, 2019. Thereafter, the suit was only set down for mention on 4th October, 2021. In the circumstances of this case, I am persuaded that the court should exercise the discretionary power to enlarge time in favour of the Applicant especially noting that no prejudice will be occasioned to the Respondents.

25. The upshot is that the Notice of Motion dated 2nd September, 2020 is allowed as prayed. For the avoidance of doubt, the Applicant is granted Thirty (30) days to file a supplementary affidavit annexing the judgment in Milimani CMCC No, 5591 of 2018 failure of which, this suit will be deemed as dismissed.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY FEBRUARY, 2022

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

A. K. NDUNG'U

JUDGE