[2010] KEHC 1933 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL 177 OF 2007

SUSAN WAMBURAJACKSON………………………..……….……. APPELLANT

VERSUS

CHARLES NYAANGI NYAMOHANGA ………………………..…. RESPONDENT

JUDGMENT

This is an appeal against a ruling delivered by E. Awino, P.M. on 15th August 2007. The background of that ruling briefly stated is as hereunder:

The appellant filed Migori PMCC No. 269 of 2005 seeking various relieves touching onplot No.11 B, Gomatira, Isabania.He alleged that he was the lawful owner of that plot but the respondent had trespassed into the same.The suit was listed for hearing on 18th October, 2006 on which day the hearing proceeded in the absence of the respondent’s counsel although he had been duly served with a hearing notice.Judgment was delivered on 21st November 2006 and the appellant’s suit was allowed with costs.The respondent was ordered to vacate the said property.Thereafter the respondent filed an application dated 14th November, 2006 seeking to set aside the ex-parte judgment.The application was scheduled to be heard on 7th February, 2007. On that day the respondent’s counsel failed to attend court and the application was dismissed for want of prosecution.The respondent filed yet another application seeking review of the orders made on 7th February, 2007. He also sought re-instatement of the dismissed application.The subsequent application was listed for hearing on 27th February, 2007. The same was heard and a ruling delivered on 24th April 2007 when it was dismissed.The trial magistrate held that there had been no exercise of due diligence on the part of the respondent’s counsel to prosecute the previous application.The court observed that failure by the respondent’s counsel to attend court appeared to have been deliberate rather than a mistake.

The respondent changed advocates and on 14th June 2007 he filed yet another application seeking to set aside the ex-parte judgment and decree dated 21st November 2006. Ruling in that application was delivered on 15th August 2007. The learned trial magistrate allowed the application with costs to the plaintiff.

The appellant was aggrieved by that ruling and preferred an appeal to this court.The grounds of appeal are as hereunder:

(1)The learned trial magistrate erred in fact and in law in entertaining and granting the chamber summons application dated 14th June 2007 seeking to set aside the ex-parte judgment and/or decree dated 21st November 2006 when the same was clearly prohibited by the doctrine of res judicata in terms of section 7of the Civil Procedure Act Chapter 21 laws of Kenya.

(2)The learned trial magistrate erred in law in finding and holding that the court was seized of jurisdiction of entertaining the chamber summons application dated 14th June 2007 when the same was expressed to be brought pursuant to unknown existent provision of the law, to wit, order IXB rule 8 of the Civil Procedure Rules.

(3)The learned trial magistrate erred in law in taking into account extraneous issues and/or factors, not relevant to the issues in dispute and/or controversy between the parties.Consequently, the exercise of judicial discretion by the Honourable Principal Magistrate was coloured with impropriety and same reeks of irregularities.

(4)The decision of the learned trial magistrate appealed against is irregular, illegal and contrary to provisions of order IXB rule 7 (2) of the Civil Procedure Rules.

(5)That the learned trial magistrate erred in law in sitting on an appeal against his own decision issued and delivered on the 24th day of April 2007, dismissing an application seeking to set aside the previous dismissal orders dated 7th February 2007.

(6)The learned trial magistrate erred in not finding that the respondent was non-suited as against the appellant.”

Counsel for the parties agreed to canvass this appeal by way of written submissions.The submissions were duly filed and I have carefully perused the same.Was the application dated 14th June, 2007res judicata?The respondent’s counsel submitted that it was not because the earlier application seeking the same orders had been dismissed for want of prosecution on 7th February, 2007.

However, the respondent had filed another similar application dated 12th February, 2007 which came up for hearing on 27th February, 2007. This one was argued inter partes and dismissed on 24th April, 2007. The two applications had been made on the same grounds, that the respondent’s counsel had failed to diarise the scheduled date for hearing of the suit and thus the ex parte judgment was due to counsel’s mistake.

Mr. Kisera’s contention was that the application dated 12th February 2007 was for review and setting aside of the ex parte orders dated 7th February 2007 and had nothing to do with the ex parte judgment dated 21st November, 2006. The respondent then instructed him and he filed the application dated 14th June, 2007 seeking to set aside the ex parte judgment dated 21st November, 2006 which was granted.

Section 7of theCivil Procedure Actclearly states that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit, and has been heard and finally decided by such court.

A suit is defined as “all civil proceedings commenced in any manner prescribed.”No appeal was preferred against the trial court’s refusal to review and set aside the ex parte judgment after the application was argued inter partes.Was it therefore proper for the respondent to file another application seeking to set aside the ex parte judgment?In my view, the law did not permit the respondent to do so, even if he had changed advocates.The court had considered such an application and found it unmeritorious and proceeded to dismiss it.

The learned trial magistrate held that the judgment in favour of the appellant had been entered ex parte and the application to reinstate the suit was dismissed for want of prosecution and that in the subsequent application for review and/or setting aside of the judgment he had held that the failure by the respondent’s advocate to attend court was deliberate.

In his view, “what is unheard cannot be res judicata.”

With respect, the learned trial magistrate misdirected himself in interpretation of the law.Ex parte decrees operate to render a matter decidedres judicataand the defendant’s failure to appear will not deprive the plaintiff of the full benefit of his decree.See“MULLA- THE CODE OF CIVIL PROCEDURE”, 16 Edition Volume 1 Page 187.

The learned trial magistrate, by hearing the application of 14th June, 2007 was sitting on appeal of his earlier decision when he rejected a similar application.

I would therefore uphold grounds 1 and 5 of the memorandum of appeal.

With regard to ground two of the appeal, I do not think that it ought to have been raised at all because the respondent’s counsel corrected the provisions of the law under which the application was brought to readorder IXB rule 8and notIX rule 8. In any event, such a mistake, even if it had not been corrected,cannot per serender otherwise a competent application incompetent.

I do not consider it worth dealing with the other grounds of appeal, having come to the conclusion that the application that gave rise to the ruling appealed against wasres judicata.I allow this appeal and set aside the learned trial magistrate’s ruling date 15th August, 2007. The respondent’s application dated 14th June 2007 is dismissed.

The appellant shall have the costs of the appeal as well as costs in the subordinate court.

DATED, SIGNED AND DELIVERED AT KISII THIS 12TH DAY OF JULY, 2010.

D. MUSINGA

JUDGE.

12/7/2010

Before D. Musinga, J.

Mobisa – cc

Mr. Oguttu for the Appellant

Mr. Bosire for Mr. Kisera for the Respondent

Court:Judgment delivered in open court on 12th July, 2010.

D. MUSINGA

JUDGE.