Mahiva v Musine & another

3. 4. The issue did not end there. The appellant then led Notice of Motion dated 9th September 2021 seeking the following orders: 1. [Spent] 2. That this Honourable Court do review the ruling delivered on 6th April 2021 which allowed the application dated 2nd November 2020 led by the second defendant herein. 3. That the pleadings led by the plainti including the Grounds of Opposition and Replying Adavit (both dated 26th January 2021) and the plainti’s submissions all in response to the second defendant’s application dated 2nd November 2020 be admitted as duly led and thereafter, a ruling to the said application be delivered based on all the documents led. 4. That this Honourable Court be pleased to issue any other further orders as it may deem t and just to grant in the interest of justice. 5. That the costs of this application be provided for. Once again, the application fell for determination by Hon. E. Malesi, Principal Magistrate who delivered a ruling on 2nd November 2021 and dismissed it. Dissatised with the outcome, the appellant led this appeal through Memorandum of Appeal dated 30th November 2021. The following are the grounds of appeal as listed on the face of the memorandum of appeal: 1. The learned magistrate erred in law and fact in allowing the application dated 2nd November 2020 and thereby admitting documents led by the 2nd respondent after the plainti had closed his case. 2. The learned magistrate erred in law and fact in failing to nd that allowing the application by the 2nd respondent to introduce documents would be prejudicial to the plainti who had already prosecuted and closed his case. 3. The learned magistrate erred in law and fact in allowing the 2nd respondent to le his list and bundle of documents after the close of the plainti’s case. 4. The learned magistrate erred in law and fact in allowing the application dated 20th November 2020 (sic) despite the fact that there was evidence that the 2nd Defendant (respondent herein) had never served her pleadings upon the plainti, occasioning the reply to defence to be led ‘Under protest.’’ 5. The learned magistrate erred in law and fact in failing to take in to account and to consider the grounds of opposition and the submissions adduced on behalf of the appellant. 6. The learned magistrate erred in fact by failing to take in to account and to consider the evidence adduced on behalf of the appellant. 7. That the learned trial magistrate’s ndings were contrary to the law and procedure hence occasioning miscarriage of justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20450/eng@2023-10-03 2

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5. Based on those grounds, the appellant urged this court to allow this appeal with costs, to set aside the ruling delivered on 2nd November 2021 and in its place make an order dismissing the Notice of Motion dated 2nd November 2020 with costs. 6. The appeal was canvassed through written submissions. The rst respondent opted not to le any submissions, instead taking the position that the appeal concerns only the appellant and the second respondent. Although given an opportunity to do so, the second respondent neither attended this court nor led any submissions. 7. The appellant argued that no good reasons had been tendered as to why the second respondent opted to introduce the said documents after failing to do so before commencement of hearing. That the second respondent’s advocates actively participated in the hearing and cross examined the plainti and his witness. The appellant further submitted that having closed his case, he will not be accorded an opportunity to cross examine based on the new documents thereby infringing his right to a fair hearing. He further contended that the application dated 2nd November 2020 was allowed on the erroneous ground that it was undefended, yet the learned magistrate later acknowledged that it was opposed. That the error or mistake on the face of the record went to the substratum of the suit, the Subordinate Court ought to have considered the prejudice to be suered by allowing the documents at that late stage. Arguing that there was a miscarriage of justice, he urged this court to allow the appeal. 8. I have carefully considered the grounds of appeal and the submissions. The only issue for determination is whether Notice of Motion dated 9th September 2021 was merited. 9. The principles that guide an appellate court while considering an appeal against an order made in the exercise of discretion are settled. The Court of Appeal recently reiterated in the case of Mombasa Cement Limited v Kitsao & 34 others (Civil Appeal E016 of 2020) [2022] KECA 562 (KLR) (24 June 2022) (Judgment) that an appellate court will not interfere with the exercise of discretion by an inferior court unless it is satised that its decision is clearly wrong due to misdirection or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration with the result that it arrived at a wrong conclusion. 10. The principal relief that the appellant sought in Notice of Motion dated 9th September 2021 was review of the orders made on 6th April 2021 so that the grounds of opposition, replying adavit and submissions which he had led in response the application dated 2nd November 2020 be considered. 11. The law on review is found at Section 80 of the Civil Procedure Act which provides: Any person who considers himself aggrieved - 12. a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks t. Further, Order 45 Rule 1 of the Civil Procure Rules provides: Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20450/eng@2023-10-03 3

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(b) by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sucient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. 13. The thrust of the appellant’s case both in this appeal and in Notice of Motion dated 9th September 2021 is that there was an error apparent on the face of the record in that his grounds of opposition, replying adavit and written submissions were not placed on record despite being led and were therefore not considered. 14. The Court of Appeal stated in National Bank of Kenya Limited v Ndungu Njau (1997) eKLR as follows: A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be a sucient ground for review that another Judge could have taken a dierent view of the matter. 15. The record shows that the learned magistrate stated in the ruling dated 6th April 2021 that the appellant did not le any response or written submissions in respect the application dated 2nd November 2020. In the subsequent ruling delivered on 2nd November 2021, the learned magistrate acknowledged that the appellant had led the grounds of opposition, replying adavit and written submissions. He faulted the registry for failing to ensure that the documents were in the le. Thus, there is no belabouring that there was a glaring mistake on the record. 16. It is also a requirement of Order 45 Rule 1 of the Civil Procedure Rules that an application for review be made without unreasonable delay. That said, what constitutes unreasonable delay varies from case to case as was held by Munyao J. in Jaber Mohsen Ali & another v Priscillah Boit & another [2014] eKLR. In the case at hand, the application for review was led on 14th September 2021, some ve months after the order sought to be reviewed was made. The appellant contended that the delay is not unreasonable since the he did not get notice of delivery of the ruling owing to limited access to the court due to Covid-19 pandemic. The respondents did not controvert that position. The adverse eects of Covid-19 pandemic on access to the courts are well known and I have no reason to doubt the appellant. I am satised that the appellant made a case for review. 17. The gravity of the situation that confronted the Subordinate Court was that the second respondent was seeking to introduce new documents after the appellant (the plainti) had closed his case and after the rst defence witness had concluded her testimony. In the ruling dated 6th April 2021, the learned magistrate acknowledged the unique circumstances thus: The civil procedure Rules provide specic timelines for ling of pleadings. To cap it all Order 11 of the Civil Procedure Rules upon being complied with conrms a matter as ripe for hearing and it is not expected that any party would le further documents without the leave of the court. At this time each party through the documents led by the rival party https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20450/eng@2023-10-03 4

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would have prepared his/her case based on what was previously led. Any document led thereafter would act as an ambush to the rival party. In the instant case the situation is more dire. The plainti has prosecuted his case and closed and 1st defendant is underway in prosecution of his case. Clearly therefore these two parties would be prejudiced if the 2nd defendant’s application is allowed as prayed. 18. Having appreciated what was at stake and the dire situation in which the application placed the appellant, the learned magistrate went ahead to state in his ruling dated 2nd November 2021: The reason I gave allowing the application dated 2.11.2020 was that I had gone through the statement of defence led by the 2nd defendant and I was convinced from the averments which the documents whose leave was being sought to be introduced were in possession of 2nd defendant's advocate and the same were actually referred to in the said statement of defence as the same seen to be in consonance with the averments in the 2nd defendant's statement of defence. In all fairness therefore it can reasonably be said that the plainti had notice of these documents and will not be prejudiced if the same documents are introduced in evidence. In any case the plainti will have an opportunity to cross examine on the said documents. 19. While it is true that the appellant has a right of cross examination, cross examination based on documents supplied after a party has closed his case is not the same thing as framing one’s case and preparing for trial with the documents at hand. A plainti who is forced to make do with cross examination in such circumstances is certainly put in a potentially prejudiced position. Litigation is conducted on evidence adduced, as opposed to evidence that could potentially be adduced. The appellant could not be expected to address documents that had not been introduced by the time he conducted his case. It is for good reason that Order 7 rule 5 of the Civil Procedure Rules requires that a defendant les his list and bundle of documents together with his defence. Similarly, parties go through pre-trial so that they conrm readiness for trial. 20. In her Notice of Motion dated 2nd November 2020, the second respondent essentially sought extension of time to le his list and bundle of documents. The principles applicable to an application for extension of time were identied by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the court held that extension of time is an equitable remedy that is only available to a deserving party at the discretion of the court and that the applicant has the burden of laying a basis to the satisfaction of the court. The court went on to hold that the delay should be explained to the satisfaction of the court and that consideration should be given to whether there would be any prejudice suered by the respondent if extension is granted. The application must be brought without undue delay. 21. The reason oered by the second respondent for not ling her documents earlier was inadvertence on the part of her advocate. In fact, the supporting adavit was sworn by Mr Abel M. Momanyi, her advocate. He stated that the documents were given to him at the time of drafting the defence, but he forgot to le them. The record shows that Mr Momanyi attended court for pre-trial on 6th November 2018 and conrmed readiness for trial. The matter came up on 4th June 2019, 28th February 2020, and 25th August 2020. The second respondent was represented on all those occasions and her advocate expressed readiness for trial. The trial took o on 23rd October 2020 with Mr Momanyi personally present. The plainti’s case was heard and closed and DW1 testied. The matter was then adjourned to 27th January 2021, upon an application by the rst respondent. No explanation was oered as to https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20450/eng@2023-10-03 5

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how the second respondent and her counsel failed to notice the omission, if at all it was an omission, while preparing for and even conducting the trial. 22. Going by its date, Notice of Motion dated 2nd November 2020 was certainly prepared not later than the beginning of November 2020. It was however led on 23rd November 2020. There is uncontroverted evidence on record that even after that late ling, it was not served until 26th January 2021, on the eve of further defence hearing. The late service notwithstanding, counsel for the appellant scrambled and led grounds of opposition and a replying adavit. Even after taking directions that the application be canvassed through written submissions, it is on record that the second respondent did not le any submission in respect of her own application. As I noted earlier, she did not participate in this appeal either, despite service of notices. 23. I have highlighted all the foregoing to show that for a party seeking equitable and discretionary relief, the second respondent’s conduct has all along been consistent with a party who is not keen to actively play their part in the litigation. Whether that is attributable to the second respondent personally or her advocates on record is a matter for both to do introspection on. 24. I have said enough to demonstrate that the learned magistrate failed to properly exercise discretion with the result that there was miscarriage of justice. I nd that the second respondent did not suciently lay a basis for extension of time and did not satisfactorily explain the delay in ling her documents. Equally, there was unreasonable delay in both ling and serving the application upon the appellant. Further, although the Subordinate Court acknowledged the prejudice likely to be caused to the appellant, no measures of redress were oered. In those circumstances, Notice of Motion dated 9th September 2021 ought to have been allowed while Notice of Motion dated 2nd November 2020 was for dismissal. In sum, I nd merit in this appeal. 25. In view of the foregoing, I make the following orders: a. The ruling and order of the Subordinate Court made on 2nd November 2021 is hereby reviewed. b. Notice of Motion dated 2nd November 2020 is dismissed. c. The second respondent shall bear costs of both this appeal and Notice of Motion dated 2nd November 2020. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 3RD DAY OF OCTOBER 2023. D. O. OHUNGO JUDGE Delivered in open court in the presence of: Mr Amalemba for the appellant Mr Okali holding brief for Mr Getanda for the rst respondent No appearance for the second respondent Court Assistant: E. Juma https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20450/eng@2023-10-03 6

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