[2021] KEELC 3821 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO. 26 OF 2019

WATHIGURU WOMEN GROUP alias

GLADYS WAITHIRA KAMAU...........................................................APPELLANT

VERSUS

ANDREW GITAHI KIMOTHO..................................................1ST RESPONDENT

FLORENCE WANJIRU KUNGU.................................................2ND RESPONDENT

(An Appeal from the part of the Ruling of Senior Resident Magistrate Court at Thika by Hon.B.M Ekhubi SRM dated 13th February 2019 in the Chief Magistrates Court Civil Suit No. 1252 of 2015)

BETWEEN

ANDREW GITAHI KIMOTHO...............................................1ST PLAINTIFF

FLORENCE WANJIRU KUNGU............................................2NDPLAINTIFF

VERSUS

WATHIGURU WOMEN GROUP alias

GLADYS WAITHIRA KAMAU...............................................DEFENDANT

JUDGMENT

The Appellant Wathiguru Women Group alias Gladys Waithira Kamau was the Defendant and the Respondents were the Plaintiffs . By a Notice of Motion Application dated 3rd December 2018 , the Appellant sought for orders that;

a) That the Honourable Court do set aside the Judgment / decree herein and allow the Defendant to prosecute her case and the same be determined on merit.

b) That this Honorable Court do issue orders compelling the plaintiff and Hebros Auctioneers to give an account of the proceeds realized from the proclamation and sale of properties as per proclamation dated 27th November 2018 and notification of sale dated 22nd march 2017.

c) That the Honourable Court do issue orders lifting the attachment /proclamation unconditionally.

d) That the Cost of this Application be borne by the Plaintiffs.

The Application was premised on the grounds that the Defendant/ Applicant(Appellant) had never been served with Notice of entry of Judgment or examined on her wealth as required by law. That the Defendant/ Applicant(Appellant) has never given testimony in this case, hence cannot understand how Judgment and Decree was obtained and her former Advocate kept her in darkness concerning this case. That the attached properties belong to 3rd parties, hence incapable of being attached in satisfaction of the purported Judgment /Decree. That, previously the Plaintiffs/ Respondents and Hebros Auctioneers did proclaim and sell properties belonging to the Defendant’s(Appellant’s) daughters and no account was given. That the 3rd parties who own the attached properties have warned the Defendant/ Applicant(Appellant) of dire consequences if they are sold, hence unless the orders sought are granted, the Defendant/ Applicant (Appellant) marriage of over 60 years is at stake.

In her Supporting Affidavit, Gladys Waithira Kamau, averred that she engaged the services of Kabue Thumi & Co Advocates, but due to pressure of work, the said Law Firm did not inform her of any progress in the instant suit. That in October 2016, Hebros Auctioneers attached and sold her daughter Cows and some properties worth over Kshs.1,000,000/= and have never given an account of the proceeds realized. That on 27th November 2018, the Plaintiffs/ Respondents sent Okuku Auctioneers who proclaimed properties belonging to one David Stanley Kamau and are planning to sell the same by public auction. That she has never owned a Motor Vehicle, Freshian cows, Merino sheep , water tank and cutting machine and that the same are grossly undervalued.

Further, she has never been called upon to testify in the instant suit or been told how / when the Judgment and Decree was obtained. That the Plaintiffs(Respondents) have no claim against her as per the Defence on record and hence she should be given an opportunity to testify and clarify issues. That she has never received an account of how much was realized from the sale conducted on 24th March 2017 or how the proceeds of the sale were appropriated by the Plaintiffs(Respondents) and her Advocate. That she sold L.R Ruiru/Kiu Block 4/1390 to the Plaintiffs (Respondents) and was in the process of transferring the same to their names. That the Plaintiffs (Respondents) refused to cooperate and rushed to Court, hence the process shall have been complete.

Further, the Plaintiffs(Respondents) holds her original documents to the said property and they have sold the properties in refund of the purchase price and they want to enrich themselves by selling properties illegally attached . That her husband exclusively owns the livestock project and the same are his tools of trade.

The Application was opposed and Andrew Gitahi Kamotho swore a Replying Affidavit on 11th December 2018, and averred that Hebros Auctioneers effected attachment of 6 cows and 2 calves, the only properties attached as the said instruction were through his appointed advocates. That if any ownership is being claimed, the same ought to have been proved through ownership documents which the Applicant has not presented. That Okukus agencies Auctioneers were instructed by his Advocate as the law requires after Judgment had been lawfully entered in their favour. That the proclaimed properties are the same as previous proclamation notice proving that they belong to the Appellant, whose intention is to mislead the Court.

That the matter was slated for full hearing and the Applicant’s (Appellant’s)Advocate sent his representative who did state that the Applicant(Appellant), their client was not available and since the Court did not allow part heard, the same was adjourned and another date was taken in court by both Advocates for 19th April 2018.

That on the date of the hearing, the Respondents (Plaintiffs) appeared and the matter proceeded and thereafter Applicant’s advocate closed her case since the Applicant(Appellant) never turned up. That he has been advised by his Advocate that “he who seeks equity must come with clean hands.”That the Applicant was allowed to defend herself, but she denied herself, the opportunity by failing to turn up in Court . That the Defendant/ Applicant(Appellant) through her previous Advocates filed an Application under Certificate seeking to have the Ex parte Judgment set aside, which was granted on the basis that throw away costs of Kshs. 10,000/=be paid and thereafter disappeared from her own Advocates. That the Defendant/ Applicant (Appellant) went mute when she realized that the suit property had been sold to another third party unknown to them and he was developing the said property . That he has been advised by his Advocate which advice he believes to be true that for the Auctioneers to be compelled to breakdown the alleged proceeds, the Applicant ought to have filed an Application against the Auctioneers and not him as he did not dispose any goods.

Further that the Applicant is misleading the court in terms of the matrimonial properties which is shared and the same applies to him and the 2nd Respondent as they are a couple and had purchased the property as their investment.

The Application was canvassed by way of written submissions and on the 13th December 2019, the trial Court delivered its Ruling and dismissed the Application and stated ;

“I agree with the Plaintiffs’ counsel submissions that the defendant was represented by learned counsel through-out the trial including at the time judgment was delivered on 27th September 2018.

on the contention that the properties belong to third parties, I am of the view that the proper procedure ought to be predicated under order 22 rule 51 of the rules and under order 21 architecture, there are provided alternatives venues by which the owner of property sold in execution a person having interest in such property could set such a sale aside.

The third parties did not invoke that provision of law. Be it as it may, there is no evidence placed to prove properties attached and sold belong to third parties.

On the foregoing, I hereby dismiss the application dated 3rd December with costs save for prayer d of the application where the accounts of sale are to be rendered within 14 days from today’s date.

The Appellant was aggrieved by the above determination of the Court and Order thereon and she has sought to challenge the said Ruling through the Amended Memorandum of Appeal dated on 13th February 2020 . The Appellant sought for orders that the Court;

a) Re evaluate the evidence / pleadings Notice of Motion dated 2nd December 2018 supporting further Affidavit , replying Affidavit and submissions in the Chief Magistrates Court record and uphold the appeal and set aside the Ruling delivered in Thika CMCC No. 1252/15 on 13th February 2019.

b) Grant the Appellant an opportunity to prosecute her case by giving evidence and case be determined on merit.

c) Issue an order lifting the attachment / proclamation unconditionally.

d) Costs of this Appeal be borne by the Respondent

The grounds in support of the Appeal are:-

1. The Learned trial magistrate erred in Law and in fact by failing to resolve the issue that the Appellant was not notified of the hearing date hence reason for non attendance in court thereby denied opportunity to prosecute her case.

2. The Learned Trial Magistrate erred in Law and in fact in under evaluating the facts raised in the supporting Affidavits which fact were weighty hence arriving at a wrong conclusion.

3. The Learned Trial Magistrate erred in Law and in fact in considering extraneous matters hence arriving at a wrong decision in favour of the Respondents.

4. The Learned Trial Magistrate erred in Law and in fact in considering irrelevant and unproved facts which were irrelevant to the issues before the court contained in the Application hence disregarding the Applicant’s application without justifiable reason.

5. The Learned Trial Magistrate erred in Law and in fact by quoting a decided case without analyzing the issues involved and the relevance to the Appellant’s case hence making an erroneous decision.

6. The Learned Magistrate misdirected himself by ignoring the pending objection proceedings filed by the 3rd party under the relevant provisions of the law.

7. The Learned trial Magistrate misdirected himself by allowing the accounts of sale to be rendered and failed to appreciate the fact that the Judgment was erroneous hence making a contradictory decision.

8. The Learned magistrate erred in law and in fact by not finding that the Appellant brought her Application by invoking the relevant provision of the Law and hence made an erroneous decision.

9. The Learned Magistrate dismissed the Appellant’s application without basing his decision on any valid guiding provisions and or principles of Law.

10. The Learned Trial Magistrate failed to consider the contents of the supporting and further affidavits exhibits submissions tendered by the Appellant hence arrive at an unfair and erroneous decision.

On29th April 2020, the Court directed that the Appeal be canvassed by way of written submissions and in compliance with the said directive the Appellant through the Law Firm of K. Museti & Company Advocatesfiled her written submissions on 6th November 2020, andsubmitted that there is no evidence before Court that the Appellant was informed of the hearing date and failed to turn up . That the Respondent knew that the Appellant disappeared after the previous Judgment was set aside hence confirming communication breakdown between the Appellant and her Advocates . It was further submitted that the evidence that was tendered before Court was scanty . That Advocate Magu did not inform the Court whether the Appellant was informed of the hearing .The Appellant urged the Court to allow the Appeal.

The Respondents through the Law Firm of Khadula & ASA Associates Advocates filed their written submissions dated 29th October 2020, and submitted that the subject matter no longer exists and that no useful purpose would be served by allowing the appeal as the Appellant denied herself the granted opportunity to be heard and the same will be a process in futility as the suit property was sold to a third party. It was further submitted that the Appellant is guilty of laches and has exhibited a general lack of candor in the general proceedings to warrant for the Appeal to be allowed as she was allowed fair hearing when the Court set aside the Interlocutory Judgment and staying of the Execution process but still undermined the Courts power and discretion. That the Court’s discretion cannot be used to assist a person which has deliberately sought to evade or otherwise obstruct justice. The Court was urged to dismiss the Appeal.

As this is a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78of theCivil Procedure Act. See the case of Selle ….Vs… Associated Motor Boat Co. [1968] EA 123 where the Court held that;

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).

The Court has carefully considered the Memorandum of Appeal, the written submissions by the parties the evidence in the subordinate Court and the Court finds that the issue for determination is whether the Memorandum of Appeal is merited.

In the Notice of Motion Application dated 3rd December 2018, the Appellant had sought for the setting aside of the Judgment of the Court dated 27th September 2018, on the grounds that she was never informed of the date of the hearing and therefore never given a chance to prosecute her case. The Appellant has faulted the trial Court for failing to resolve the issue that she was not notified of the hearing date.

The Court has gone through the proceedings of the lower Court and notes that on 19th April 2018,when the matter came up for hearing Mr. Magu appeared for the Appellant and cross examined the Respondent during the hearing. Further that the said Counsel when called upon to prosecute the Appellants case, he closed the Defense case without calling any witnesses. Further that when the matter came on 24th May 2018, to confirm the filing of written submissions, the Appellant was once again represented by a Mr. Kaburu,who was holding brief forMr. Kimbofor the Appellant. When the matter came up for Judgment, the Appellant was once again represented by an advocate. It is thus not in doubt that the Appellant was represented by an advocate throughout the proceedings up to Judgment delivery and was afforded an opportunity to be heard.

Though the Appellant sought to claim that the Advocate kept her in the dark, the Court has not seen any evidence that proves the same. There is no evidence that the Appellant has filed any complaint of wrongdoings against the said Advocate or there is no claim that the said Advocate did not have instructions to represent her as the Advocates even filed submissions in the matter . It is trite that he who alleges must prove and the Appellant has failed to prove the same.

The guiding provisions of law with regards to setting aside Judgment is to be found in Order 12 Rule 7 of the Civil Procedure Rules provides:-

"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."

Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides:-

"The court may set aside an order made ex parte"

From the above provisions of law, it is very clear that the Court has discretion to set aside or not to set aside an exparte judgment. Such discretion must be exercised judiciously. In deciding the same the Court is guided by the decision of the Court of Appeal in the case of James Kanyiita Nderitu & Another [2016] eKLR, where the Court of Appeal stated thus:

“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment, among others. See Mbogo & Another –vs- Shah (1968) EA 98, Patel –vs- E.A. Cargo Handling services Ltd (1975) E.A. 75, Chemwolo & Another –vs- Kubende (1986) KLR 492 and CMC Holdings –vs- Nzioka [2004] I KLR 173.

In an irregular default judgment, on the other hand; judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”

The Court having found and held that the Appellant was served with the hearing and represented in the proceedings, it further finds that a regular Judgment was entered as against the Appellant.

Order 12 Rule 7 of the Civil Procedure Rules provides that 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. The power to set aside ex parte orders are discretionary and the Court must use its discretion to come to a conclusion while also ensuring that Justice has been done. The Court in Patel….Vs….E.A Cargo Handling Services Ltd (1974) EA 75, held that:-

“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just . The main concern of the Court is to do Justice to the parties and the court will not impose conditions on itself to feter the wide discretion given to it by the Rules.’’

In the instant case, the Appellant was well represented in the suit. The Court finds that the Appellant has not satisfied it that she has any basis upon which the Judgment sought to be set aside to warrant it exercise its discretion and set aside the said Judgment. Therefore, this Court finds and holds that the trial Court did not misapprehend the law to warrant it to interfere with the said discretion.

Having held that the Judgment was in order, the Court finds that then there would have been no reason for the Court to lift the attachment orders.

Having now carefully re-evaluated and re-assessed the available evidence before the trial court and the Memorandum of Appeal together with the written submissions, this Court finds that the trial Magistrate arrived at a proper determination and thus finds no reason to upset the same.

The upshot of the foregoing is that the Appellant’s Appeal is found not merited and consequently, the said Appeal is disallowed entirely and the Ruling and Order of the trial court is upheld with costs to the Respondents.

It is so ordered.

Dated, signed and Delivered at Thika this 25th day of March 2021

L. GACHERU

JUDGE

25/3/2021

Court Assistant - Dominic

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgement has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Appellant

No appearance for the 1st Respondent

No appearance for the 2nd Respondent

L. GACHERU

JUDGE

25/3/2021