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The Learned Magistrate erred in law and seriously misdirected herself when she failed to appreciate that in dismissing the appellant’s application dated May 19,2008 she denied the appellant the opportunity to defend the suit, violating its natural justice right to be heard in the suit.
Those are factors which, in my humble view, the learned trial magistrate ought to have taken into consideration and which she did not, at the time she made her decision the adjourn the first hearing to another definite date yet the application for leave to amend the defence had not been filed. That the court allowed the defendant/appellant to file an application to amend the defence and on 17 th October 2002, the application for leave to amend the defence was filed and fixed for hearing on 18 th November 2002. This court takes judicial notice that this suit was being prosecuted at a time when technicalities were the norm rather than the exception and that parties to suits endured so much delay of their cases being heard but from the record, the court gathers that the trial magistrate Mrs N.A. Owino impressively, was extremely keen to have the matter heard expeditiously which is the hall mark of justice, that justice shall not be delayed and that is why she granted last adjournment on the first hearing. From the way the trial magistrate was keen to have the matter heard on the first day, no doubt, she considered expeditious disposal of the suit as essential to the dispensation of justice. Therefore, the fact that she was vetted out of the judiciary, for whatever reasons, it has not been shown that the reason was related to complacence or delayed hearing of matters or in the delivery or judgments which is not the same as being corrupt. All the above factors have contributed to the delay. Needless to say that all documents/exhibits which the respondent produced in the lower court are insitu the original record. Therefore, a retrial would in no way prejudice the respondent, who will have his day in court and let the appellant too have his day in court to defend the suit. The application also sought for stay of execution of the judgment and decree pending hearing and determination of the application.The court Honourable M.A. Murage Mrs (SRM) after considering that application dismissed it vide a ruling delivered on 14 th March 2002. This was before Honourable N.A. Owino Mrs SRM took over the conduct of the matter. In dismissing that application the trial magistrate held that the issue of whether or not the plaintiff wrote that letter voluntarily was a triable issue hence the matter should proceed to a full trial. In determining the first issue above, it is important to lay down the established principles for setting aside exparte judgment. In my humble view, the trial magistrate did not exercise her discretion judiciously when she dismissed the defendant/appellant’s application for setting aside the exparte judgment. I also find that the conduct of the proceedings did not accord the defendant a fair sense of justice and fairness before the trial court. This court notes that the said application was filed at the first instance before the suit was set down for hearing. The appeal was heard by Honourable Onyancha J 18 th June 2015 before he was transferred to Kabarnet High Court and owing to issues relating to his retirement age, the learned Judge was unable to write the judgment which he had reserved for delivery on 16 th September 2015. Accordingly, the record was returned to the Presiding Judge of the Civil Division Honourable Msagha Mbogholi J who directed that I write the judgment in this matter after proceedings were typed.
The above process led to serious issues of impropriety being raised in the form of a complaint by Mr Kinyanjui against the trial magistrate besides him filing an application seeking for setting aside of the exparte proceedings before judgment could be delivered but by letter dated 5 th December 2002 Honourable H.A. Omondi SPM wrote to Mr Kinyanjui communicating the trial magistrate’s decision not release the trial file until after he judgment was written and delivered.If the magistrate had not felt able to examine the justice of the appellant’s application and whether there was a triable issue by questioning him and examining his pleadings, he should have at least offered him an adjournment, subject to being penalized for costs, so that the matter could be properly reviewed. In opposition to the appeal, Mr Wasonga counsel for the respondent submitted that the record shows that on 28 th February 2001 the defendant filed an application dated 29 th October 2001 seeking for dismissal of the plaintiff’s case on the basis that the plaintiff had denied being an employee of the defendant company and that on 13 th March 2002 the trial court dismissed that application and directed that the suit proceeds to hearing. That on 25 th September 2002 when the suit came up for hearing the defendant sought leave to amend the defence and Mr Wasonga conceded but that indeed the record of the court does not show that concession but that nonetheless, the fact that the defendant actually filed the application would suggest that the court must have responded.
On 18 th November 2002 Mr Mwaniki held brief for Mr Kinyanjui for the defendant and sought for adjournment because Mr Kinyanjui was engaged before Mwera J in HCC 2176/01 which matter a hearing notice was served upon him under certificate of urgency. On 28 th November 2002 Mr Achoki advocate appeared on behalf of Mr Wamalwa and requested for a hearing for 10.00 a.m. and the court set the matter for hearing for 11.15 a.m. I note that when Mr Kinyanjui sought for an adjournment to enable him file an application for leave to amend since it appears that as at that time, pleadings had closed, the court grudgingly, and granted him the adjournment proceeded to fix a hearing date, without paying regard to the question of whether, upon the filing of the application for leave for amendment of the defence, the plaintiff would have wished to file a reply or whether the plaintiff, upon being served with a draft amended defence, would have wished to file an amended plaint. On 26 th March 2001 the parties advocates appeared in the registry and fixed the suit for hearing on 25 th September 2001 at 9.30 a.m. which was the first time that the suit was being set down for hearing. Come 29 th September 2001, Mr Kinyanjui counsel for the defendant is recorded as indicating to court that he was not ready to proceed as he needed time to amend the defence. He sought for limited time to make the application. Mr Wamalwa counsel for the plaintiff opposed Mr Kinyanjui application on the ground that the defendants were served with a hearing notice and that they had sufficient time to amend their defence. The court recorded as follows: “last adjournment” and set the suit for hearing on 18 th November 2002, while condemning the defendant to pay costs of shs 5,000/- and the plaintiff’s costs. This being a first appeal, this court is obliged to abide by the provisions of Section 78 of the Civil Procedure Act which empowers the court to:
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The appellant’s application to amend the defence be reconsidered and Nairobi CMCC 5380/2001 shall be reheard afresh before any other magistrate of competent jurisdiction as Mrs N.A. Owino has since left the judiciary. That following those developments, the defendant’s counsel expeditiously went to his chambers and prepared an application to set aside the exparte proceedings of 28th November 2002. That the application was filed on 19 th May 2003 because the file was not available as the trial magistrate had taken it away for writing of the judgment. I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself 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 account and consideration and in doing so arrived at a wrong conclusion.” It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision would have been different.” That the court adjourned the matter to 28 th November 2002 , while penalizing the defendant to pay costs of shs 5,000/- That nonetheless, the court did not record the disposal of the application for amendment in favour of the defendant.
The learned trial magistrate accordingly dismissed the appellant’s application for setting aside exparte judgment with costs, thereby provoking this appeal as set out in the 7 grounds of the Memorandum of Appeal reproduced earlier on.
The Learned Magistrate erred and misdirected herself, in law and in fact when she found that the appellant had not justified setting aside the exparte judgment as prayed in the application dated May 19 th, 2003, yet there were sufficient grounds to set aside the said proceedings.
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