Njoroge & 1 other v Hesbon Odanga Malwenyi & 1 other

iv) 2. Costs of the appeal be awarded to the appellant. The grounds of appeal are: i) ii) That 6 hours delay in depositing the throw away costs of Kshs 15,000/= was an excusable and understandable mistake that elongation of time could remedy. That the magistrate failed to appreciate that the appellants rectified the error within hours of realizing the oversight by payment of the costs. iii) That it is unconscionable to condemn the appellants to settle an exparte decree of Kshs 6 million on account of an error of Kshs 15,000. iv) That condemning the appellants to a decree of Kshs.6 million on account of a technicality is against article 159 of the Constitution of Kenya 2010. v) That the magistrate condemned the appellants unheard against article 50 of the Constitution and the rules of natural justice. vi) That the magistrate failed to exercise her discretion in the primary duty of rendering justice to all. vii) That the magistrate failed to appreciate that the appellants had a good statement of defence. a) That the magistrate did not have jurisdiction to hear the claim. b) That there was no valid contract executed in accordance with Section 3(3) of the Law of Contract. c) That Section 54 of the Indian Transfer Act requires contracts of land to be in writing. THIKA HCCA NO. E243 OF 2024 Page 2

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d) That it is not possible to bring suits against directors without lifting the corporate veil. Background of the Appeal 3. The respondents filed this suit vide a plaint dated 3oth March 2022. The respondents claimed that the appellants purported to sale their land without their consent. The respondents sought a judgment of Kshs 4,700,000/= against the appellants. 4. In response, the appellants filed a statement of defence dated 27th June 2022 and a notice of preliminary objection dated 13th June 2022 challenging the jurisdiction of the court to determine the matter. The preliminary objection was that the mode of dispute resolution outlined in the agreement was arbitration and that the 1st defendant as a director of the 2nd defendant could not be legally enjoined in the against the proceedings without lifting the corporate veil. 5. The court entered an exparte judgment appellants on 7th December 2023. Upon notification of entry of judgment, the appellants filed a notice of motion application dated 7th November 2023 seeking to set aside the ex parte judgment on the ground that Article 50 of the Constitution on the right to a fair hearing had been violated by the magistrate who entered judgment after a one-sided THIKA HCCA NO. E243 OF 2024 Page 3

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hearing. The appellants also filed a notice of motion application dated 22nd April 2024 seeking an order of stay and setting aside of the default. The grounds of the application were: i) That failure to attend court was occasioned by an excusable technological error. ii) That the hearing notice was not received by the defendants and their counsels since it was diverted to SPAM MAIL. iii) That the defendants have a strong defence that cannot be swept under technicality. That the court lacked jurisdiction and the issue of jurisdiction was pertinent for the court to proceed without hearing both parties. iv) v) 6. That the defendants filed this matter without inordinate delay. In response, the appellants filed a replying affidavit dated 29th April 2024 opposing the application for setting aside the ex parte judgment and urged the court to dismiss the application with costs. 7. The court directed that the application be canvassed by way of written submissions. 8. The appellants filed written submissions dated 22 nd May 2024. The appellants submitted that their failure to attend court on 18th October 2023 was an excusable mistake occasioned by technological error. The appellants submitted that the hearing notice was misdirected to the SPAM MAIL THIKA HCCA NO. E243 OF 2024 Page 4

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and such they could not see the hearing notice on time. The applicants also submitted that their statement of defence raised triable issues that could only be conclusively determined upon hearing of both parties. 9. The respondents filed written submissions dated 10 th June 2024. The respondents submitted that the appellants' actions amounted to a tort of conversion. The respondents submitted that the 1st appellant, as the engine behind the operations of the 2nd appellant, was legally bound to answer for their actions. They submitted that the counsel was served with hearing notices and mention notices, but they chose not to participate in the proceedings. 10. The respondents submitted that the appellants had not advanced a good cause as to why the ex parte judgment should be set aside. The respondents urged the court to find that the application dated 22nd April 2024 lacked merit and be dismissed with costs. 11. Upon hearing both parties, the court retired and delivered a ruling dated 2nd July 2024. The court allowed the application for setting aside the default judgment on condition that the appellants pay throw away costs of Kshs 15,000/= within 14 days from the date of the ruling. The court further added that failure to comply within the 14 days, the orders issued in the ruling would stand vacated and the judgment reinstated. THIKA HCCA NO. E243 OF 2024 Page 5

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12. The appellants filed a notice of motion dated 15 th July 2024 seeking indulgence of the court to hear and determine the issue of jurisdiction before the main hearing of the suit slated for 13th August 2024. The appellants submitted that the court lacked jurisdiction and that the matter should be referred for arbitration. 13. In response, the respondents filed a replying affidavit dated 2nd August 2024. The respondents stated that the ex parte judgment in this suit that was set aside had been reinstated following the appellants’ failure to pay the throw away costs of Kshs 15,000/= within 14 days from the date of the ruling. 14. In response, the appellants filed another notice of motion application dated 18th July 2024 urging the court to enlarge the time for payment of the Kshs 15,000/= throw away costs. The 1st appellant stated that the 1 st appellant inadvertently overlooked the 14 days due to the political tensions the 1st appellant was involved in as a member of parliament for Gatundu South Constituency. In addition, the appellants averred that the payments were late by one day. 15. The court delivered a ruling on 17th September 2024 dismissing the appellants’ application. The court noted that involvement in political activities does not exempt one from obeying court orders and that the application for enlargement was brought in bad faith, three (3) days after the lapse of 14 days. As such, the approached the court with unclean hands. THIKA HCCA NO. E243 OF 2024 Page 6 appellants had

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Proceedings in the High Court 16. The appeal was canvassed by way of written submissions. 17. The appellants filed written submissions dated 1 st February 2026. The appellants submitted that the delay in paying the throw away costs was an excusable human error. The appellant cited the case of Belinda Muras vs Amos Wainaina (1978) eKLR, in which the court stated that the door of justice is not closed because of a mistake. The court reiterated that the mistake may be condoned, but courts will do whatever is necessary to rectify if the interest of justice demand so. 18. The appellants submitted that their defence was meritorious and they ought to be allowed to prosecute it. The appellants submitted that Article 159 of the Constitution requires justice to administered without undue regard to procedural technicalities and urged the court to set aside the ruling reinstating the ex parte orders. The appellants submitted that the issue of jurisdiction, lack of an enforceable contract and misjoinder could not be settled at the interlocutory stage and urged the court to allow the appeal as prayed. 19. The respondents filed written submissions dated 2 nd February 2026. They submitted that the appellants’ action to restore a court order that had been overtaken by events was a nullity. The respondents submitted that an extension of time would serve no useful purpose, since the judgment had THIKA HCCA NO. E243 OF 2024 Page 7

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been reinstated and there would be no second application to set it aside. The respondents submitted that political tension was not a reasonable ground for seeking the discretion of the court. The respondents urged the court to dismiss the appeal with costs for lack of merit. Analysis and Determination 20. I have exhaustively considered the record of appeal, the ruling of the trial court, the rival submissions by the parties as well as the cited judicial decisions. 21. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court, both on points of law and fact and come up with its findings and conclusions. The duty of a first appellate court was extensively analysed in the matter of Gitobu Imanyara vs Attorney General (2016) eKLR. 22. The court in executing its appellate jurisdiction is not bound to the trial court’s findings of fact if it appears that the court has clearly failed on some account of particular circumstances or probabilities materially to estimate the evidence. 23. Bearing the above in mind, I find that the issue arising for determination is whether the appeal is merited; whether the trial magistrate erred by failing to allow the application seeking enlargement of time to pay THIKA HCCA NO. E243 OF 2024 Page 8

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the throw away costs issued in the ruling setting aside the ex parte judgment? 24. Article 159 of the Constitution of Kenya 2010 provides that justice shall be administered without undue regard to procedural technicalities. 25. In the case of Nicholas Kiptoo Salat vs IEBC (2013) eKLR, Kiage JA stated as follows: ‘I am not in the least persuaded that Article 159 of the Constitution and the oxygen principle both command courts to do substantial justice in a just, effective and proportionate manner without undue regard to procedural technicalities. However, the said provision does not mean to aid in the overthrow and destruction of rules in creating an anarchical free-for-all in the administration of justice.’ 26. In light of the foregoing, courts are not mandated to cover parties who exhibit scant respect for rules, timelines and judicial authority. Timelines in judgments and rulings serve to make judicial adjudication and determination fair, just, certain and even handed. Therefore, this court cannot aid one side on account of indolence to unfairly cause harm to an innocent party. 27. The appellants filed this appeal and submitted that the trial court acted unfairly by failing to enlarge the timeline for payment of throw away costs. The appellants submitted that 1st appellant was involved in political activities and that there was tension in his constituency. Furthermore, they submitted THIKA HCCA NO. E243 OF 2024 Page 9

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that the mistake was excusable as the human mind is prone to make mistakes. 28. On the other hand, the respondents submitted that the appellants' application lacked merit since it was filed days after the court orders were reinstated. The respondents submitted that the application would serve no purpose since the court could not allow a second application for setting aside the ex parte judgment. 29. It is trite law that a litigant ought to approach a court of law with clean hands. The appellant has treated the trial court with contempt from the onset of the trial. The appellant failed to participate in proceedings necessitating an ex parte judgment. The court exercised its discretion and set aside the default judgment on conditions that the appellant failed to comply with. 30. Court orders are not issued in vain, and the involvement of a litigant in political activities cannot be a basis for not complying with court orders. If indeed, the appellant wanted an extension of time to make payments, they ought to have approached the court in advance before the lapse of the 14 days. 31. I find that the appellant has come to court with unclean hands. This court will not cover the actions of an indolent party to aid in waste of precious judicial time. I find the THIKA HCCA NO. E243 OF 2024 Page 10

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ruling of the trial judge dismissing the application for enlargement of time sound in law and in fact. 32. For the above reasons, I find that the appeal herein lacks merit and proceed to dismiss it with costs. Dated, signed and delivered at Nairobi this 23rd day of July 2026. DAVID MBURU JUDGE In the presence of: Mr. Mutuku for the Appellant Mr. Olande for the Respondents Kalondu - Court Assistant THIKA HCCA NO. E243 OF 2024 Page 11

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