Big Tree Farm Limited v Rono & 25 others

3. The Plainti accused its former Advocates of having a propensity to and actively not apprising it of the developments in the matter as and when they occurred. The said Advocates, and in particular Mr. Michael Wafula Simiyu, ignored the Plainti’s calls and text messages and was never available in his chambers when the deponent or her representative visited his chambers. 4. The Applicant’s contention was that on May 18, 2022, the deponent was informed by a court clerk that the matter was poised to be mentioned on May 23, 2022 to conrm the ling of submissions on the Defendant’s substantive counterclaim. Since the Plainti’s former Advocates were still unavailable as at May 20, 2022, the Plainti instructed another rm of Advocates who came on record on May 24, 2022. It annexed the Notice of Change of Advocates to the Adavit marked GNW1. 5. Further it was argued that once the present Advocates came on record, it was discovered upon perusal of the court le on May 23, 2022, which the Plainti suit had been dismissed on February 1, 2022 as, in their terms, learned counsel on record gave unsatisfactory reasons in applying for an adjournment. But the fact is that the le was placed aside to enable Mr. Wafula address the court personally as he had instructed another Advocate to hold his brief and adjourn the suit. He was waited for more than half a day. However, he did not show up leading to the dismissal of the Plainti’s case. 6. It urged that the mistake of an Advocate should not be visited upon the client. It stated that it was in the interest of justice that the Application be allowed as it desired to prosecute its case. A denial of the orders sought would occasion a miscarriage of justice. It thus prayed that the Application be allowed as prayed. The Response 7. The Application was opposed by the 7th, 11th, 21st and 24th Defendants. Their joint Replying Adavit was sworn by the 21st Defendant on June 2, 2022 and led on that day. They opined that the Application was misconceived, bad in law and an abuse of the process of the court. They accused the Plainti of misleading the court as it was well aware of the date xed for hearing which was taken in the presence of all parties’ respective Counsel. They deposed that the suit was dismissed in the presence of the Plainti who was aware that the matter had a last adjournment order on record. They added that in spite of being given ample time to prepare their case, the Plainti failed to do so; it was not serious. They cited that there was a delay in ling the instant Application. If the Application is allowed, it would occasion a miscarriage of justice upon the Defendants. Furthermore, the Plainti was not deserving of the orders sought as he had approached the court with unclean hands having failed to pay costs per the court orders of on November 4, 2019 and November 17, 2021. They urged this court to dismiss the Application with costs. Submissions 8. Parties agreed to dispose of the Application by way of written submissions. The Plainti submitted that the Defendants will suer no prejudice if the Application is allowed. It submitted that the Plainti took diligent steps to establish the progress of the matter but the same was an exercise in futility as its former Advocates failed to brief the Plainti. It maintained that it was vigilant and not indolent. The Plainti contended that the subject matter concerned a very substantive property of land. It was thus in the interest of justice that the suit be heard on its merits rather than dismissed on technicalities. It fortied its submissions by relying on Articles 25 (1), 48, 50 and 159 of the Constitution. It advanced that the subject of the litigious proceedings herein raised triable issues with high chances of success. For those reasons, they pleaded with the court to grant the reliefs sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4873/eng@2022-09-22 2

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9. On the part of the 7th, 11th, 21st and 24th Defendants, it was submitted that no sucient reasons had been advanced to warrant the grant of the orders sought. They adopted the contents of their Replying Adavit imploring this court to dismiss the Application with costs. Analysis and Disposition 10. I have considered the Application, the grounds as well as the Adavit in support. I have also considered the Replying Adavit and the led submissions. The Plainti seeks to reinstate its suit. The Application is anchored on Order 12, Rule 7 of the Civil Procedure Rules. 11. The principles governing setting aside ex-parte judgments and orders is now well settled in our jurisdiction. I cite the case of Shah -vs- Mbogo & another [1967] EA 116 which extensively dealt with the issue. In it the learned judge held thus: “ I have carefully considered, in relation to the present Application, the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. This discretion is intended so to be exercised to avoid injustice or 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.” 12. The Plainti/Applicant pleaded with this court to reinstate the instant suit in order that it may ventilate its case. The Plainti blamed its former Advocates on record for failing to inform it of the progress of the matter including the date the matter was listed for hearing. It added that the communication breakdown had spanned for over two (2) years since 2020. The Plainti maintained that it was intent on prosecuting its case that was merited. It urged this court not to dismiss its claim on account of technicalities. By the Applicant contending lack of communication with the learned counsel representing them, this Court was called upon to consider the issues the Applicant raised visà-vis the conduct of the Plaintis’ case prior to the material date and on the material date: that is to say, the totality of the conduct of the Plainti’s case leading up to the date of dismissal and particularly the reasons given for its non-attendance on the date of dismissal. 13. First, the Plainti contends that they lost contact with the Advocates for almost two years. If at all the allegations were anything to go by, one wonders why they failed to instruct another Advocate or in the alternative proceed with the matter pro se since it is the one that instituted the present suit. This does not manifest vigilance and intent to prosecute a matter that the Applicant wants this Court to believe that it has in the conduct of this matter. One would expect its vigilance to reect on record by including an establishment in the position of the le as often as possible due diligence and zeal towards nding out, including in writing even to the Court or its then learned counsel as to what to do in the circumstances of not reaching its then Advocates rather than waiting for the tide when high to cry foul. 14. The general aphorism is that a mistake by an Advocate should not be visited upon his client. Consequently, as was stated in Winnie Kibinge & 2 others -vs- March Electricals Limited Civil Case No. 222 of 2010 “it does not follow that just because a mistake has been made, a party should suer the penalty of not having his case heard on merit.” 15. Having said that, I discourage the conduct of parties to automatically blame their former Counsel when orders are entered against them. In such scenarios as is the present one, the erstwhile Advocates are not given the benet of tendering evidence to demonstrate whether or not they discharged their duties as ocers of the court. Be that as it may, the interest of justice dictates that suits are for sustaining rather than dismissing. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4873/eng@2022-09-22 3

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16. The Plainti contended that he was not aware of the progress of the matter and has every desire to proceed with the matter accordingly. However, I take note of the proceedings of February 1, 2022. The Plainti sought an adjournment in light of one of the directors’ indisposition. To that extent it is clear that at all times the Advocate was in touch with the client. Therefore the argument by the Applicant that he was not in touch with the Advocate is wholly contradictory to the position was put forth by the Advocate on the material date. When two clashing facts are given by parties who are believed to know them well, it goes without saying that one of the two must be lying. There cannot be two opposites of the same fact and they be true. 17. It must be recalled that this is a Court of justice. It is one which expects to be presented with truth at all times, no matter how costly or painful that truth can and will be to the parties. Presentation of lies to the Court by a party in order to get away with orders or reliefs is a practice which must and should be abhorred completely. Actually, once it is discovered it should be punished severely. It does not matter whether the lie was presented on oath or otherwise. As long as it is presented to the Court for purposes of misleading it, it is punishable. In any event, if it is criminal and punishable Section 129 (a) of the Penal Code, Chapter 63 of the Laws of Kenya, in ordinary parlance, for one who gives false information to a person employed in the Public Service, so it should be for one who lies to Court. After all, Judges and Judicial Ocers perform public service and should not be given false information in the course of their performance of duty. It is time legislators thought of enacting a law that goes to punish lies in courts beyond perjury. 18. To deliberately mislead the Court is one aspect of the practice that lawyers swore, upon admission to the Bar, never to do. It goes without saying that once the Advocate informed this Court that the client or witness was unwell, that was to be taken to be true, and further that the said Advocate was in touch with the client on that date or just before and conrmed that indeed it was true. If it turns out that the said individual who was said to be unwell gives another reason for non-attendance, it clearly shows that either he or his Advocate were intent on misleading the Court. That being so, this Court cannot, in its right mind, rely on an untruth to set aside its orders. Much less when there is no Adavit from the learned counsel who attended Court and indicated to it otherwise than that he was not in touch with his client. Such variances are the ones that call for statements on oath as to who of the two is stating the truth because in the very least, they make a fuss of the Court and taint the sacredness of the Court process. And the Judge cannot shy away from aligning himself with the sentiments of Madan J (as he then was) when he stated in N vs. N [1991] KLR 685 in the following terms: “ I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.” 19. Turning to the facts as were on the material date in this matter, no explanation was advanced by learned counsel who held brief for the Plainti’s to explain why, in view of the Plainti having had two directors did not avail the other director in court on that day to testify, if one was unwell. If indeed, one of the director’s was indisposed, why wasn’t the other director called to testify? The Plainti appeared to indicate that it was only calling one director as a witness, which was not the case. That was one other reason why the Court found on the said date that the reason advanced by the Plainti for adjournment was unmerited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4873/eng@2022-09-22 4

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20. In my view, the Plainti is not interested in prosecuting its case. Otherwise, the hearing would have commenced on February 1, 2022. For this reason, I nd that the Application lacks merit and I hereby dismiss the same with costs to the Respondents. 21. It is so ordered. RULING DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 22ND DAY OF SEPTEMBER, 2022. DR. IUR FRED NYAGAKA JUDGE, ELC, KITALE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4873/eng@2022-09-22 5

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