[2022] KEHC 10330 (KLR)

Wang’ang’a v Njeru (Civil Suit 1 of 2017) [2022] KEHC 10330 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10330 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Suit 1 of 2017

LM Njuguna, J

July 13, 2022

Between

Johnson Mugwe Wang’ang’a

Plaintiff

and

Isaac Muchira Njeru

Defendant

Ruling

1. The matter for determination before this court is a notice of preliminary objection dated 17. 03. 2022 on the grounds that :i)The notice to show cause came up for hearing on 15. 11. 2021 and the same was dismissed for want of prosecution. The said notice having been dismissed, the only option left to the plaintiff was to make a substantive application to have the same reinstated which was never done.ii)The letter dated 12. 01. 2022 requesting for reinstatement was legally improper because it was not an application as required by law. The letter was never copied to the defendant and the reasons given were never sound.

2. Directions were issued that the same be canvassed by way of written submissions and the parties obliged.

3. The plaintiff submitted that a notice to show cause is a pleading issued at execution stage of a decree and there are no elaborate strict legal procedures which stipulate how the hearing of a notice to show cause is to be conducted. That, therefore, the executing court has wide discretion in the manner in which the court chooses to conduct the hearing of the notice to show cause. It was submitted that as long as the court exercises its discretion, the same is not open to criticism. That there is no provision in the Civil Procedure Act that strictly stipulates that a dismissed notice to show cause can only be reinstated vide a formal application. It was further submitted that the notice to show cause herein was done suo moto and that a letter seeking to have the same reinstated was never prejudicial to the judgment debtor in any manner. Reliance was made on Section 3A of the Civil Procedure Act and article 159 of the constitution in regards to technicalities.

4. The defendant on the other hand submitted that the contested notice to show cause why the warrant of arrest should not issue came up in court on 15. 11. 2021 for hearing and that the Hon DR refused to re-instate the same for the reason that on 25. 10. 2021, an email was sent to the plaintiff’s advocates on the impending hearing of the notice to show cause. That the plaintiff chose to ‘set aside’ the dismissal order by writing a letter to the Hon DR explaining that he never attended court for the reason that his internet was unreliable.

5. It was further submitted that the said explanation ought to have been offered by way of filing a formal application to set aside the said orders dismissing the notice to show cause and not by writing a letter; further that, the directions given by the Honourable DR for the party to take out a fresh notice to show cause was unfair and improper as the previous notice to show cause was never set aside. In the end, it was submitted that the defendant was never given a hearing when the said directions were issued afresh and the same is thus unfair.

6. I have considered the preliminary objection, and the submissions filed by the parties herein and I find that the main issue for determination is whether in the circumstances of this case, the court ought to set aside the ex parte order of the court to take out fresh notice to show cause.

7. In the case of Hassan Ali Joho & another v Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR the Supreme Court stated that:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit”

8. The defendant/judgment debtor has relied on section 3 A of the Civil Procedure Act in bringing this preliminary objeciton before this court and thus the said section gives court inherent powers to issue such orders as may be necessary to meet the ends of justice. In Wachira Karani v Bildad Wachira [2016] eKLR, the court stated that“The fundamental duty of the court is to do justice between the parties…. Fundamental to that duty is that parties should be allowed a proper opportunity to put their cases upon the merits of the matter…….. The court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of a wide scope and ambit”[Also See Article 165 of the Constitution].

9. In the instant case, the learned Deputy Registrar invoked her discretionary power to dismiss the notice to show cause previously taken out by the judgment creditor for reasons that the party failed to show up to prosecute the same despite having been formally served by the court. The record shows that on 25. 10. 2021, the court via an email informed the parties herein that the notice to show cause was scheduled for 15. 11. 2021 and so the parties were expected to avail themselves for the same.[ See Order 12 Rule 7 Civil Procedure Rules; Court of Appeal inNjue Njagi v Ephantus Njiru & Another [2016] eKLR].

10. That the decision whether or not to set aside ex parte order is discretionary is not in doubt. The discretion is intended to be exercised to avoid injustice and 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 course of justice. [See Shah v Mbogo & Another [1967] EA 116 ; Court of Appeal inCMC Holdings Ltd v Nzioki [2004] KLR 173].

11. The defendant/judgment creditor through his counsel chose to write a letter to ‘set aside’ the dismissal order by the Hon DR explaining that he never attended court for reasons that the same was occasioned by unreliability of the internet on the part of the judgment debtor. It was submitted that the said explanation ought to have been offered by way of filing an application to set aside the said orders and not by writing a letter.

12. In my considered view, the act by the Hon DR directing the judgment creditor to take out a fresh notice to show cause was unprocedural given that the dismissal orders were never dealt with and they still stand and therefore, the said orders ought to have been set aside first before a new notice to show cause could be issued. It is my further considered view that the only way this ought to have been done is by way of a formal application.

13. It would have been proper for the court to consider the defendant/judgment debtor who also had an opposing interest in the matter before issuing an order for fresh notice to show cause and grant him an opportunity to be heard. This is so since, the right to be heard is not only constitutionally entrenched but it is also the corner stone of the Rule of law; a valued right; and is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of the rules of natural justice. [See Article 50 of the constitution; Richard Ncharpi Leiyagu vs Independent Electoral Boundaries Commission & 2 Others Civil Appeal No. 18 of 2013 [2013] eKLR].

14. This court exists to serve substantive justice to all parties to a dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases on the merits of the matter. This is the fundamental principle of natural justice. [See – Wachira Karani vs. Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR].

15. Based on the following, and in pursuant of the supervisory jurisdiction of this court conferred under Article 165(6) and (7) of the Constitution, I hereby make the following orders:i.The preliminary objection dated 17. 03. 2022 is hereby upheld.ii.The directions on taking out of fresh notice to show cause issued on 20. 01. 2022 are hereby set aside.iii.The judgment creditor is at liberty to make a formal application for reinstatement of the notice to show cause dismissed on 15. 11. 2021.

16. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF JULY, 2022. L. NJUGUNAJUDGE……………………………… for the Plaintiff……………………………… for the Defendant