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ELCDismissedAppeal from Thika CMCC No. 1252 of 2015· [2021] KEELC 3821 (KLR)

Wathiguru Women Group v Andrew Gitahi Kimotho & another [2021] KEELC 3821 (KLR)

High Court of Kenya
25 March 2021
LGL. Gacheru
3,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed an appeal because the litigant's own lawyer attended all hearings, so she could not claim she was denied a fair hearing.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Thika from a ruling of the Chief Magistrates Court in Thika CMCC No. 1252 of 2015, delivered on 13th December 2019, dismissing the Appellant's Notice of Motion dated 3rd December 2018. The Appellant, who had been the Defendant below, sought setting aside of a judgment and decree dated 27th September 2018, an order compelling the Plaintiffs and Hebros Auctioneers to account for proceeds of proclamation and sale, and unconditional lifting of the attachment, on grounds that she was never notified of the hearing, never testified, and that attached properties belonged to third parties including her daughters and husband. The trial court dismissed the application, holding the Appellant was represented throughout, and that third parties should have proceeded under Order 22 Rule 51, but directed that accounts of sale be rendered within 14 days. On appeal, Gacheru J, exercising the first appellate duty under Section 78 of the Civil Procedure Act, re-assessed the record and found the Appellant was represented by counsel on 19th April 2018 (when her counsel cross-examined the Respondent and closed the defence case), at the submissions stage and at judgment, so a regular judgment was entered. Applying Order 12 Rule 7 and the James Kanyiita Nderitu distinction between regular and irregular default judgments, the court held the setting-aside power is discretionary, not automatic, and that the Appellant had not proved her advocate kept her in the dark. The claim that attached properties belonged to third parties also failed for want of evidence and invocation of the proper procedure. The appeal was found unmerited and dismissed entirely, the trial court's ruling upheld with costs to the Respondents.

Key legal issues

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01

Whether the Appellant was denied a fair hearing by not being notified of the hearing date

Holding

The Appellant was represented by counsel throughout the proceedings up to judgment delivery and was afforded an opportunity to be heard; a regular judgment was entered against her.

Reasoning

The court reviewed the lower court proceedings: on 19th April 2018 Mr. Magu appeared for the Appellant, cross-examined the Respondent and closed the defence case; on 24th May 2018 an advocate held brief; and an advocate appeared at judgment. No evidence supported the claim that the advocate kept her in the dark, nor was any complaint filed against the advocate. He who alleges must prove.

p. 4
02

Whether the trial court misdirected itself in refusing to set aside the judgment

Holding

The trial court properly exercised its discretion under Order 12 Rule 7; the High Court found no misapprehension of law warranting interference.

Reasoning

Since the Appellant was duly represented, the judgment was regular, not irregular, and could only be set aside at the court's discretionary discretion on terms as may be just. The Appellant did not satisfy the court that there was any basis to exercise that discretion in her favour, so the trial court's determination stood.

p. 4
03

Whether the attachment/proclamation should be lifted on the ground that attached properties belonged to third parties

Holding

The claim failed; the proper procedure for third-party claims is under Order 22 Rule 51, which was not invoked, and no evidence proved the attached properties belonged to third parties.

Reasoning

The trial court had found that the proper procedure for a person claiming an interest in property in execution is under Order 22 Rule 51 of the Civil Procedure Rules, which the third parties never invoked, and that there was no evidence placed before the court proving that the properties attached and sold belonged to third parties.

p. 2

Legal principles established

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  • A first appellate court must analyze and re-assess the evidence and reach its own independent decision
  • A regularly entered default judgment can only be set aside in the exercise of the court's discretion, taking into account the reason for default, delay, triable issues, prejudice and the interest of justice
  • An irregularly entered default judgment, where the defendant was not served, is set aside ex debito justitiae as a matter of right
  • The discretion to set aside an ex parte judgment is wide and must be exercised judiciously to do justice to the parties

Court orders

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  1. 1.Appeal disallowed entirely
  2. 2.Ruling and Order of the trial court upheld
  3. 3.Costs of the appeal to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 22 Rule 51
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Selle vs Associated Motor Boat Co
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270
  • James Kanyiita Nderitu & Another
    [2016] eKLR
  • 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
  • CMC Holdings –vs- Nzioka
    [2004] 1 KLR 173
On appeal from
Chief Magistrates Court, Thika
CMCC No. 1252 of 2015
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

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, "Wathiguru Women Group v Andrew Gitahi Kimotho & another [2021] KEELC 3821 (KLR)", Case Analysis (2021). Appeal from Thika CMCC No. 1252 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3821/eng@2021-03-25

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