1. By a memorandum of Appeal filed on 20th September, 2022 the appellant faulted the judgment of the trial court (Hon. L. B. Koech – PM) delivered on 24th August, 2022 on the following grounds;-
a) The learned trial Magistrate erred in law and in fact in finding that the appellant herein had received the hearing notice from the respondent.
b) The learned trial magistrate erred in law and fact in failing to take into account the appellant’s evidence and submissions.
c) The learned trial magistrate erred in law and fact by disregarding the provisions, letter and spirit of Articles 50 and 159(1)(a)(b)(d) and (e) of the Constitution of Kenya 2010.
2. The court did not find on record submissions by Counsel for the appellant in support of the Appeal. The court however noted that the crux of the application by the trial court which was dismissed was that the appellant was never served. This issue was considered by the trial court when the appellant presented the motion dated 3rd March, 2022 which sought to set aside the ex-parte proceedings of 10th February, 2022.
3. The trial court considered the application on merit and was not persuaded that the applicant sufficiently explained it’s absence during the trial. The court has perused the ruling and the trial court’s analysis of the documents relied on by the appellant and explanations given concerning their absence when the matter came up for hearing and hold the same view as the trial court that the appellant was duly served but failed and or ignored to attend court.
4. The appeal is therefore found without merit and the same is hereby dismissed with costs.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this day of …………………………day of ………………………. 2023.
Abuodha J. N.
Judge
In the presence of:-
………………………………………………..for the Appellant
………………………………………………for the Respondent