Njoroge v Maina

frustrated and delayed this suit and that it is untrue that her advocate failed to attend court on October 5, 2021. 6. It was deposed by the Defendant that the Plainti’s advocate, Mr Arthur Ingutya, participated in the proceedings and cross-examined her at length; that the Plainti’s advocate proceeded to le and serve submissions dated December 7, 2021 and that the said advocate was also present on December 8, 2021 to conrm the ling of submissions before the judgement date of March 17, 2022 was given. 7. The Plainti’s former Advocate, Mr Arthur Ingutya, also led an adavit in response to the adverse allegations levelled against him by the Plainti. The said advocate deponed that he personally attended court on every date when this matter was scheduled, including at the hearing, when he cross-examined the Defendant; that he complied with the directions of this court and led submissions on the Plainti’s behalf and that he kept the Plainti properly informed as to the proceedings including all the scheduled dates. 8. According to the Plainti’s former counsel, it is the Plainti who would propose dates that she would be able to travel to Kenya but on the hearing dates, she could not be found. Counsel deposed that he was not aware that the Plainti had recently been in Kenya and that he did his best to advance her cause in this matter. 9. According to counsel, he doubts if the adavit sworn in support of the application was sworn by the Plainti and that the signature that he knows as belonging to the Plainti is very dierent from the one appearing on the Supporting Adavit sworn on February 16, 2022. Counsel annexed on his adavit correspondence which showed that the Plainti was kept informed of the proceedings. 10. The Plainti led a Supplementary Adavit sworn on February 22, 2023 in which she deponed that at no time was the Defendant privy to her movements within and outside the country and neither is he a handwriting or signature expert and that the Defendant has not been proven that the impugned signature is not hers. Submissions 11. Counsel for the Plainti submitted that the Plainti has satised the conditions precedent to having the court grant her audience and testify in the case. Counsel relied on the denition of mistake as set out in Belinda Muras & 6 Others v Amos Wainaina [1978] eKLR as well as the cases of Philip Chemwolo & Another v Augustine Kubede [1982-88] KLR 103, Shah v Mbogo & Another [1967] 6 A. U7 and Kilele Ventures Limited v Susan Wanjiru Muritu [2019] eKLR. 12. Counsel submitted that the Plainti was ready and willing to have the matter heard having paid the legal fee in full and left it upon her former advocate to notify her when she would be needed to testify; that the Plainti was ready and willing to appear virtually and testify and that she came to learn of the mishap when on her own accord she sought to peruse the le, only to realize that the matter proceeded in her absence. 13. It was Counsel’s submission that an application for reinstatement of a suit appeals to the discretion of the court, and that the court should caution itself not to exercise its discretion in a manner that will result in injustice. Counsel relied on the cases of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others [2013] eKLR and Alexander Vincent Mabonga (Suing as the legal representative of Joseph Wekesa Tulula (Deceased) v Hilda Wanjiru Tulula & Another [2020] eKLR, amongst others. 14. Counsel for the Defendant submitted that the Supporting Adavit sworn by the Plainti is incompetent as she has not proved that she was in Nairobi on February 16, 2022 to execute the same; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17564/eng@2023-05-18 2

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that the Plainti was aware of the hearing date, which has been conrmed by her previous advocate in his adavit and that the Plainti has not denied receipt of the letters forwarded to her by her advocate. 15. The Defendant’s Counsel submitted that the Plainti does not fall within the category of deserving litigants in whose favour this court should exercise discretion. Counsel relied on the case of Shah v Mbogo & Another [1967] EA 116 as cited in Bilha Ngonyo Isaac v Kembu Farm Limited & Another [2018] eKLR as well as John Kabira Kioni v George Namasaka Sichangi t/a Sichangi Advocates [2019] eKLR. Analysis and Determination 16. Having considered the Plainti’s application, the responses and the submissions led by the parties, the following issues arise for the determination of this court: a. b. Whether the Plainti’s Supporting Adavit is properly on record; and Whether it should set aside the order of dismissal of the Plainti’s suit on October 5, 2021. 17. The Defendant has challenged the validity of the Plainti’s Adavit sworn in support of the application, on the basis that the Plainti could not have sworn the adavit in Nairobi and that the signature therein does not correspond with the Plainti’s known signature in other documents. 18. It is trite that a party that alleges fraud needs to prove the same to a higher standard of proof than on a balance of probabilities. This was ably stated in Christopher Ndaru Kagina v Esther Mbandi Kagina & Another [2016] eKLR where the court stated that: “ It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care must be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sucient evidence to justify the allegations. In the Case Central Bank of Kenya LTD v Trust Bank Ltd & 4 Others [26] the Court of Appeal in considering standard of proof required where fraud is alleged state that fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof is much heavier on the person alleging than in an ordinary Civil Case. The burden of proof lies on the applicant in establishing the fraud that he alleges.” 19. In this case, the Defendant and the Plainti’s former advocate have averred that the Plainti was not in Kenya when she swore the Supporting Adavit. However, no evidence of this assertion has been produced before this court. The Defendant also averred that the signature on the Supporting Adavit does not correspond to the Plainti’s known signature. 20. The Defendant should have sought an expert opinion on the impugned signature in comparison to the Plainti’s known signature, to conrm whether it could have been written by the same person. 21. In the absence of evidence that the Plainti was not within the country at the time the adavit was signed, and that the signature of the Supporting Adavit was indeed made by another person, this court nds that the Supporting adavit is properly on record. The second issue for determination is whether the orders of October 5, 2021 should be set aside. 22. This suit was scheduled for hearing on October 5, 2021, on which date Mr Njoroge advocate appeared for the Defendant while Mr Ingutya appeared for the Plainti. Mr Ingutya for the Plainti informed the court that he was not ready to proceed as his client was in the USA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17564/eng@2023-05-18 3

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23. The then counsel for the Plainti further informed the court that he had tried to reach out to the Plainti but had been unsuccessful. Although the Plainti’s counsel applied for adjournment, the court declined to allow the Plainti’s application and in the absence of the Plainti, the court dismissed the Plainti’s suit with costs for non-attendance and prosecution. It is these orders that the Plainti is seeking to set aside. 24. Order 12 Rule 7 of the Civil Procedure Rules grants this court the jurisdiction to set aside ex-parte judgement due to non-attendance during hearing as follows: “ 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.” 25. The authority of a court to set aside an ex-parte judgement is discretionary in nature. This was armed by the Court of Appeal in Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubede [1982-1988] KAR, where the Court held: “ The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties.” 26. The exercise of this discretion is to avoid hardship resulting from an accident, or excusable mistake or error. It is not intended to aid a person who deliberately seeks to obstruct justice. (see Shah v Mbogo and Another [1967] EA 116.) 27. Despite knowing that this suit was coming up for hearing on October 5, 2021, the Plainti failed to attend court. It is not disputed that her advocate was present on the hearing date and proceeded to seek adjournment, which this court declined, and proceeded to dismiss her suit. 28. The court’s discretion could only be exercised in favour of the Plainti if good reasons were given why the Plainti was unable to attend court when the matter came up for hearing; that she promptly led this application and that the parties are unlikely to suer prejudice. 29. The reasons fronted by the Plainti for the failure to attend court are that her former advocate, Mr Ingutya, failed to inform her the date that the suit was coming up for hearing. This assertion has been disproved by Mr Ingutya who presented evidence of emails sent to the Plainti informing her that the suit was coming up for hearing on October 5, 2021. 30. On the basis of the documents before this court, this court is satised that Mr Ingutya fullled his professional mandate in representing the interests of the Plainti. Mr Ingutya was present in court on October 5, 2021 even without instructions from his client, and even after the Plainti’s suit was dismissed, he proceeded to defend the Plainti’s suit in the Counterclaim by cross examining the Plainti’s witnesses. 31. The propounded reasons for the Plainti’s failure to attend court has been shown by Mr Ingutya not to be true. The Plainti was not a victim of mistake or error by his advocate as alleged. 32. On whether the Plainti has promptly led this application, the Plainti led this application on February 16, 2022, seeking to set aside the orders of this court issued on October 5, 2021. Considering that the Plainti was promptly made aware of these orders on November 4, 2021 as well as the possibility of ling an application of this nature, the delay of four months in seeking to have these orders set aside is inordinate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17564/eng@2023-05-18 4

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33. As pleaded by the Defendant, it is not lost to this court that this application was led three weeks to the date when this matter was scheduled for judgment on March 17, 2022. Granting this application would indeed cause prejudice to the Defendant because the hearing having been concluded, all that was remaining was the delivery of the Judgment. That being the case, it is the nding of this court that the application is an abuse of the court and was not led in good faith. 34. Having found that the Plainti has not given a reasonable reason for her failure to appear in court when the matter came up for hearing, it is the nding of this court that the application dated February 16, 2022 is unmeritorious. 35. For those reasons, the application dated February 16, 2022 is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 18TH DAY OF MAY, 2023. O. A. ANGOTE JUDGE In the presence of; Mr. Mutua for Njoroge for Defendant Mr. Kariuki holding brief for Swaka for Plainti Court Assistant - Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17564/eng@2023-05-18 5

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