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ELCAllowedCivil Appeal No. 5 of 2018· [2019] KEELC 1810 (KLR)

Issa Mganga Mwaguya & 2 others v Macharia Karago & another [2019] KEELC 1810 (KLR)

Environment and Land Court
17 July 2019
AOA. OMOLLO
1,312 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Mombasa ruled that missing one court hearing due to a diarising mistake should not cost you your case—disputes deserve a fair hearing on the merits.

What this practically means

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Executive summary

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The appellants, plaintiffs in CMCC No. 974 of 2014 before Hon F. Kyambia SRM, appealed against a ruling delivered on 16th February 2018 dismissing their application dated 28th July 2015 to set aside ex-parte proceedings of 15th July 2015, at which neither they nor their counsel attended, their advocate having allegedly misdiarised the hearing date. The appeal raised eight grounds asserting that the magistrate misapplied the principles for setting aside ex-parte judgments and breached natural justice by condemning a party unheard. The respondents filed submissions; the appellants filed none, and the court considered the appeal without them. Applying the decision in Mbogo & Another v Shah (1968) EA 93, the court held that an appellate court will not interfere with a trial court's exercise of discretion unless it was exercised non-judiciously. The court found that the magistrate erred in inferring that the appellants' earlier conduct was intended to delay the matter, since the previous proceedings concerned only an interlocutory application to be disposed of by written submissions. The single-day non-attendance was adequately explained, the application to set aside was filed without undue delay, and the mistake of counsel should not be visited on the litigants. Allowing the appeal, the court set aside the magistrate's ruling of 16th February 2018 and the subsequent judgment, granted the orders sought in the application dated 28th July 2015 with costs in the cause, and directed that the suit proceed on merit before a different magistrate other than Hon F. Kyambia.

Key legal issues

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01

Whether the trial magistrate misdirected himself in refusing to set aside the ex-parte proceedings

Holding

The magistrate erred in treating the appellants' prior conduct as intended to delay the matter and in refusing to pardon a single unexplained-in-part non-attendance; the discretion was not exercised judiciously.

Reasoning

The court noted that setting aside is a discretionary remedy and appellate interference is warranted only where discretion was not exercised judiciously. On the record, the prior proceedings merely involved an interlocutory application to be disposed of by written submissions, so the magistrate's inference of deliberate delay was wrong. The one-day non-attendance was explained by a misdiarised date, the application was filed without undue delay, and the mistake of counsel should not be visited on the litigants where the party was vigilant.

p. 2

Legal principles established

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  • An appellate court ought not to interfere with a trial court's exercise of discretion unless the discretion was not exercised judiciously
  • Ex-parte orders may be set aside where there is proof of inadvertence, error or excusable mistake, but the discretion is not intended to assist a party deliberately obstructing or delaying justice
  • A party whose failure to attend court on just one occasion is adequately explained, and whose application to set aside is filed without undue delay, should ordinarily be allowed to have the dispute heard on merits

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the learned magistrate in the ruling delivered on 16th February 2018 and the subsequent judgment delivered on 18th August 2015 set aside
  3. 3.Orders sought in the appellants' application dated 28th July 2015 granted with costs in the cause
  4. 4.The suit in the court below to proceed on merit by a different magistrate other than Hon F. Kyambia

Authorities

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Cases cited (1)

  • Mbogo & Another –versus- Shah
    (1968) EA 93
On appeal from
Chief Magistrate's Court at Mombasa
CMCC No. 974 of 2014
Jurisdiction invoked
First appellate jurisdiction over a ruling of the magistrate's court (Civil Appeal No. 5 of 2018)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Issa Mganga Mwaguya & 2 others v Macharia Karago & another [2019] KEELC 1810 (KLR)", Case Analysis (2019). Civil Appeal No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1810/eng@2019-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.