[2017] KEHC 2454 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 365 OF 2012

STEPHEN MBURU KIMANI...................................1ST APPELLANT

MATHEKA FAULINER...........................................2ND APPELLANT

VERSUS

EVERLINE NJOKI MUCHOKI..................................RESPONDENT

(Appeal from the Ruling and Order of Hon. P. Nditika (Mr)

in Milimani CMCC No. 4843 of 2010 delivered on 6/7/2012)

JUDGMENT

This Appeal seeks to set aside a Ruling delivered in the lower Court on 6th July, 2012. The said Ruling determined a Notice of Motion dated 1st February, 2012 which was filed by the Appellants. In the said application, the Appellants had sought orders that there be a stay of execution of the judgment issued on 28th July, 2011 and the orders of the Court made on 27th January, 2012 dismissing the Application dated 20th January, 2012 be set aside. The application dated 20th January, 2012 which was dismissed, sought to have the ex parte judgment entered on 28/7/2011 set aside and the Appellants be granted a chance to ventilate their defence on merits. Annexed to the application is the proposed defence. The application dated 1st February 2012, from which this appeal lies was dismissed for non –attendance on the part of the Appellant.

In a Supporting Affidavit sworn by MARY NDUNG’U, an advocate of the Appellant and dated 1st February, 2012 , she depones that the application was filed under a certificate of urgency and upon hearing , the matter was given a date for inter-parties hearing on 27th January, 2012. That due to an advertent error on her part, the matter was not diarized for 27th January, 2012 and therefore, there was no attendance on their part and the same was dismissed for non-attendance. She highly regretted the non-attendance and averred that the mistake of the counsel should not be visited upon the Appellants.

The application was opposed by the Respondent vide a replying Affidavit dated 24th February, 2012. The deponent of the Affidavit HIRAM GACHUGI NDERITU averred that the appellants did not furnish the Court with justifiable reasons for not attending Court for the inter partes hearing. That the application that was served upon them properly indicated the hearing date and therefore, the Appellant’s reason does not suffice and that the Appellants’ advocates’ motives are to delay justice for the Respondent.

In the ruling delivered on 6th July, 2012 dismissing the application for lack of merits, the lower court noted that the Appellants’ advocate should take responsibility for her omissions which hurt the Client.

Aggrieved by this ruling the Appellants filed this appeal citing seven (7) grounds as contained in the Memorandum of Appeal dated 18th July, 2012. Summarily, the Appellants appeal is premised on the grounds that the trial magistrate erred in disallowing the defendant’s application in view of the evidence adduced in this matter.

The appellants therefore seek five (5) orders namely that;

(a)This appeal be allowed with costs

(b) That the ruling dated 6th July, 2012 be set aside and substituted with an order of this court allowing the application to reinstate the suit.

(c)The ruling dismissing the defendants application dated 20th January, 2012 be set aside and this suit be fixed for hearing

(d)That the judgment entered against the appellants on 28/7/2011 be set aside and the Appellants be granted a chance to ventilate their defence on merits and

(e) Such other orders be granted as this court may deem fit.

It is noted that this appeal principally is on the ruling dated 6th July, 2012 which ruling dismissed the application dated 1st February, 2012 for non-attendance. The said application was not therefore heard on its merits and that is the basic ground of appeal. Therefore, the issue which this court will seek to determine is whether the trial court erred in law and in fact in dismissing the application dated 1st February, 2012.

This being a first appeal, the role of this court will be to re-evaluate the evidence that was before the lower court and determine whether that appeal is to stand or not. In the case of Mbogo & Another -v- Shah (1968) EA 93 at 96, it was stated that

“an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

I have had the opportunity to examine the record of appeal in wholesome so that I can appreciate the history of this case. An interlocutory judgment was entered against the Appellants. When the Respondent commenced execution, the Appellant sought an order to have the execution stayed. However, there is an Affidavit of service on record wherein the process server explains in details the steps and efforts he put in place to serve the Appellants. The Appellant’s application to have the interlocutory judgment set aside was dismissed in the lower court and the appellant filed a subsequent application for review of the orders dismissing the application. The subsequent application which was dismissed for non-attendance on the hearing date.

This appeal was canvassed by way of written submissions. In the submissions dated 26th July, 2017, the Appellant argues that failure to attend court was due to the fact that, by an oversight, the matter was not diarized for that date. To me, that was a sufficient explanation for failure to attend court on 27th January, 2012 which the trial court ought to have taken into account. They relied on the case of Wachira Karani Vs. Bildad Wachira (2016) eKLR, where the court held that,

“although it is an elementary principle of our legal system that a litigant who is represented by an advocate is bound by acts and omissions of the advocate in the course of the representation, in applying that principle, courts must exercise care to avoid abuse of the system and or unjust or ridiculous results. A litigant ought not to bear the consequences of the advocates default unless the litigant is privy to the default, or the default results from failure , on the part of the litigant , to give the advocate due instructions.”

The Appellants submitted that they had shown sufficient cause why they did not appear for the hearing and they made lengthy submissions on what constitutes sufficient cause. They also relied on the case of Edney Adaka Ismael Vs. Equity Bank Limited (2014) eKLR in which an application was dismissed for not attendance. The explanation for the non-attendance was that the advocate had mistakenly noted the hearing date as 30th may, 2013 instead of 30th April, 2013. The explanation was accepted and the application reinstated and the court held that,

“…it is true that where the justice of the case mandates, mistakes of Advocates even if they are blunders, should not be visited on the clients when the situation can be remedied by costs.”

In her submissions dated 28th July, 2012, the Respondent submitted that the Appellants are out to obstruct the cause of justice by causing unnecessary delays in the matter. The Respondent has recounted the history of the matter and has referred to the case of Richard Nchapai Leiyangu Vs IEBC & 2 Others cited in Michael Muriuki Ngubuini V East African Building Society Limited (2015) eKLR where the court held that,

“We agree with the noble principles which go further to establish that the court’s discretion to set aside ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident , inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice”

The Respondent further invites the court to consider the annexed draft Defence which, it is submitted, does not raise any triable issues and on that, she submits that reinstating the application would serve no useful purpose to the parties. On this, the Respondent relies on the case of Chumo V Kerich (2004) eKLR. I have looked at this case and I find that it is not of much help as the application therein was principally disallowed for having being filed without leave of the court.

Having so considered the submissions by the parties and the authorities, it emerges that the Appellants’ Advocate was negligent in not diarizing the hearing date for the application. The appellants have vehemently submitted that a mistake of an advocate should not be visited on the Client. The Respondent has stood by her submission that the Appellants’ moves are aimed at delaying justice. Courts have considered the argument that mistakes of advocates should not be visited upon clients, provided that the Client should not be a participant to the mistake.

In arriving at my determination, I will be guided by the Court of Appeal in the case of Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR where the Applicant filed a notice of Motion seeking to reinstate an appeal which had been dismissed for non-attendance. The Applicant’s Advocate explained that non-attendance was occasioned by an inadvertent mistake in diarizing the hearing date and that the hearing date was not diarized by his secretary. That mistake of counsel should not be visited upon a client.In allowing the application, the court held that, “Article 159 of the Constitution enjoins this Court to administer substantive justice. We are cognisant that Sections 3A and 3B of the Appellate Jurisdiction Act, through the overriding objective principles mandate this Court to act justly and fairly. The overriding objective principle is not aimed at giving justice to one party at the expense of another.

Considering that there was no delay in bringing this application and being satisfied with the explanation for non-attendance as deposed in the supporting affidavit, we allow the Notice of Motion dated 4th April, 2014, and hereby restore Civil Appeal No. 248 of 2012, to be heard on merit. The registry is hereby directed to list the appeal for hearing on priority basis. Costs of this application shall be borne by the applicant.”

In the premises and in the interest of justice, this appeal will be partially allowed only in reference to the ruling being appealed against which was delivered on 6th July, 2012. Accordingly, I hereby set aside the orders dismissing the said Notice of Motion and the consequential orders. The application be and is hereby reinstated. The Appellant is hereby directed to set the application for hearing within the next 45 days from the date of this judgment.

Each party shall bear its own costs of the Appeal.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

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

L. NJUGUNA

JUDGE

In the Presence of

…………. for the 1st Appellant

………. for the 2nd Appellant

…………. for the Respondent