Mwangi v Thangari (Civil Suit 216 of 2014) [2016] KEMC 7 (KLR)

4. That date was 21.07.2016. The defence however informed the court that it had inadvertently failed to serve the plaintifi. Another date was therefore taken. That date was 25.08.2016. The plaintifi was however again not represented on that date. The defence however informed the court that the plaintifi's counsel was informed and that they had discussed that they take another date. I, however, with the concurrence of the defendant's counsel ordered that the application be dealt with by way of written submissions which were to be filed and exchanged by 9.00 am. of 15.09.2016. In the interest of fairness and openness, it was again agreed and ordered that the defence was to serve the plaintifi with the mention notice and the orders herein as regard to the filing and exchange of submissions. 5. On 15.09.2016, the file was called out at 9.30am as ordered. The plaintifi was again not represented. There were also no written submissions filed on his behalf by his counsel. There was an afidavit of service which annexed a mention notice dated 26.08.2016 that was served and received by the plaintifi's counsel, Robert Ndubi & Co. Advocates. The mention notice does not however indicate the orders as regards to the filing and exchange of written submissions herein. Though the defence had complied by filing its written submissions and arguments, there was neither confirmation nor proof that the same were served on the plaintifi. Now this practice does not disclose fairness in the disposal of this application. 6. The essence of such disclosures, notices and service is to promote transparency and therefore fairness in the trial process. The Constitution, 2010, requires all parties to a trial, whether civil, criminal or otherwise, to promote the principle of fairness; which I do believe employs the principle of openness and transparency. 7. The decision in Juma and others v AG and another (2003) 2 EA 461 best explains the meaning of a fair trial as follows: The adjective 'fair' describing the requisite hearing requires the court to ensure that every hearing or trial is reasonable, free from suspicion of bias, free from clouds of prejudice, every step is not obscured and in whatever is done it is imperative to weigh the interest of both parties alike for both and make an estimate of what right is reciprocally just.”( emphasis, mine). 8. The Supreme Court has also recently, in a land mark case, interpreted the Judiciary's mandate under Article 159(2) (d) of the Constitution as follows: The essence of that provision is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the Court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course. (Raila Odinga & 5 Others v IEBC & 3 Others [2013] eKLR at Para. 218.) 9. The counsel for the plaintifi in a letter dated 19.09.2016 did write to this court raising the same issues with regards to disclosure and service. He attached his submissions and authorities and copied the same to the defendants' counsel, Sheth And Wathigo. In the circumstances, and so as to promote the principle of fairness, I shall consider both sets of submissions herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/7/eng@2016-10-27 2

page 2 of 5

Setting Aside 10. It is a deeply entrenched principle that a court of competent jurisdiction can vary, vacate or set aside a judgment it entered ex parte; or in default pursuant to a number of factors. 11. Also, the power of the court and its discretion to set aside a judgment entered ex parte to allow the hearing of a matter inter partes is unfettered. The court has a wide discretion to set aside such judgments where the defendant failed to enter appearance and/or file a defence. This jurisdiction is exercised to avoid injustice and hardship resulting mainly from accident, inadvertence or excusable mistake or error. In normal circumstances, court do lean towards a policy of deciding cases on merits rather than encourage ex parte judgments based on procedural technicalities. This is also a constitutional requirement to that efiect.1 Guiding Principles 12. There are established grounds which would warrant this court to exercise its unfettered discretion and set aside an ex parte judgment, as stated by J.B. Havelock J in Yamko Yadpaz Industries Ltd v Kalka Flowers Ltd.Nairobi High Court Milimani Civil Case No.591 of 2012as follows: ...[T]he principles governing the exercise of judicial discretion to set aside an ex parte judgment obtained in default of either party to attend the hearing are: 13. a. Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties. b. Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but it is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the court of justice. Shah v Mbogo (1967) EA 116 at 123B, Shabir Din v Ram ParkashAnand (1955) 22 EACA 48. Further in the above case in the High Court at Nairobi, the learned judge continues to state as thus: ...[s]ome of the matters to be considered when an application is made are, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any other material factors which appear to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex 1 Article 159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles— (a) justice shall be done to all, irrespective of status;(b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation,mediation, arbitration and traditional dispute resolutionmechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard toprocedural technicalities; and (e) the purpose and principles of this Constitution shall beprotected and promoted. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/7/eng@2016-10-27 3

page 3 of 5

parte and whether or not it would be just and reasonable, to set aside or vary the judgment, upon terms to be imposed (Jesse Kimani v M.C. Connel(1966) EA 547,555F). 14. 15. From the above authority, this honourable courts stands guided by the principles entered therein and shall consider the following factors; a. Whether suficient cause has been shown or not to account for the default by the defendant; b. Whether the judgment entered is regular; c. The existence or lack of a bona fide or reasonable ground of defence; The above three factors, once established shall be balanced with the interests of the plaintifi and whether any prejudice would result if the court granting the defendant’s prayer. Determination 16. 17. Having looked at the above authorities, I have gone further to look at the supporting afidavit sworn by the defendants, the Replying afidavit sworn by the plaintifi as well as the parties’ respective submissions. I find as follows: a. The Defendants has not revealed suficient cause to explain why they failed to enter appearance or file their defence despite being duly served with summons to enter appearance. The Defendants have not disputed that they were duly served. They failed to follow up and confirm that the insurance company had taken the appropriate step, such as on liability etc, to file the responses in defending the suit. There is in fact no proof that the insurance company was duly involved by the defendant herein since there is no direct evidence that they were served with the suit papers by the defendant, and that the same were misfiled by them. Had the defendant followed up on the same with them, then I do believe that the insurance company in exercise of due diligence could have taken appropriate steps to rectify the mistake in time. b. I do therefore find the ex parte proceedings herein and the consequent judgment to be regular. c. Considering all the decisions cited herein, which are Joseph Njuguna Thairu v City Council Of Nairobi [2015]eKLR, Winnie Wambui Kibinge & 2 Others v Match Electricals Limited [2012]eKLR And Lochab Brothers Limited v Lilian Mumbi Nganga & 2 Others [2014]eKLR, All Submitted By The Defendants' Counsel , And Kilonzo & Co. Advocates v John Njenga Mututho [2012] eKLR And Francis Kipkemoi Ruto v Jeremiah Langat, Simon Kipngetich Kitur, Kipkemoi Tele & Charles Tele [2004] eKLR, that were submitted by the learned counsel for the plaintifi, I do find that were it not for the concession by the learned plaintifi's to throw away costs of Kshs. 10,000/= and further court fees that had been paid for, of Kshs. 10,000.00 during the execution process, I would have been disinclined to exercise my discretion in favour of the defendants herein who clearly appear not to have been vigilant in protecting their interest herein. d. However, because of the concession by the plaintifi's counsel herein, I do not find any prejudice that shall be occasioned to the plaintifi should the judgment be set aside, if the above costs can be paid. I therefore, rule as thus; i. That the ex parte proceedings and the resultant judgment and decree issued on 07.04.2016, be hereby set aside on condition that the plaintifi be compensated to the tune of Kshs. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/7/eng@2016-10-27 4

page 4 of 5

20,000/= payable together with the filing fees for the statement of defence and accompanying documents. ii. The Draft Statement of Defence, and the accompanying documents shall therefore be deemed duly filed upon the payment of the above costs to the plaintifi, and the requisite court fees iii. The plaintifi shall have the costs of defending this application. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 27TH DAY OFOCTOBER 2016. ALOYCE-PETER-NDEGE SENIOR RESIDENT MAGISTRATE In the presence of; Court Assistant: Tiktik Plaintifi counsel: n/a Defence counsel: n/a Plaintifi: n/a 1st Defendant: n/a 2nd Defendant: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/7/eng@2016-10-27 5

page 5 of 5