1. The background to the present appeal is that the respondent filed Malindi CMELC Number 142 Of 2019 against the appellants on 9th December 2019. In that suit he sought the following prayers:
a. A permanent injunction to issue restraining the first and second Appellants jointly and severally by themselves, servants, agents, employees or any other person claiming through them from trespassing entering remaining, alienating and or dealing with the suit property known as unregistered plot belonging to the Respondent measuring to the west 64.4 m, to the north 56.5 m to the east 35m plus 12.5 m and to the South 40.5 m or as particularly fenced using concrete poles in any manner.
b. Costs.
2. In the plaint, the Respondent stated that he has a good root cause of title to the suit property dating back to the 1970s having purchased it from Jane Njeri Miringo who had purchased it by way of agreements dated 16th August 2016 and 20th December 2013 respectively from one Thoya Shida Alfred (now deceased) who had been in possession and ownership since 6th February 2009, having purchased it from a 1970s squatter. The Respondent averred that there had been a boundary dispute on the upper eastern side of his property bordering the Appellants and the issue was marked as settled before the Area Assistant Chief. The Respondent stated that the person who had sold the Appellants their land had clearly indicated the measurement and shape of the property sold to them. That land borders the Respondent’s land to the east. The Respondent stated that in total disregard to the Respondent's proprietary rights, the Appellants fixed a permanent fence in the middle of the Respondent’s land and commenced building illegal permanent structures thereon. It is averred by the Respondent that the Appellants have offended his constitutional right to property by referring to him as a “non-local” and the area assistant chief as “a woman”. Consequently, the Appellants trespassed into his plot commenced construction of illegal structures and a wall on the eastern end thus depriving the Respondent of the access, use and quiet enjoyment of the suit property, hence the suit. It was stated that reports to the police are yielded no fruit.
3. Together with a plaint was filed a Notice of Motion of even date, seeking injunctive orders restraining the Appellants from interfering with the suit land.
4. The Appellants entered appearance in the lower court case through the firm of Mouko and Company on 17th December 2019. The respondent applied for judgment in default of defence and appearance against the appellants on 27th October 2020. The suit was heard ex parte and judgment delivered on 4th June 2021 in favour of the respondent. A decree dated 4th June 2021 was extracted. An application for setting aside judgment dated 9th July 2021 was filed on 12th July 2021 by the appellants. That application was opposed by the respondent by way of a replying affidavit sworn 14th July 2021. A ruling dated 9th March 2022 in respect of that application set aside the interlocutory judgment in the matter on certain conditions as follows, verbatim:
i. “The statement of defence shall be deemed to be properly filed and served upon payment of the prerequisite court filing fees;
ii. The applicant shall file the said statement of defence duly signed and dated within 2 days of this order;
iii. In default of compliance with order given in (i) and (ii) then the order vacating the interlocutory judgment shall automatically lapse without further reference to the (sic) this court;
iv. The defendants/applicants to pay throw away costs of Kshs 20,000/- to the plaintiff/ respondent.”
5. A statement of defence appeared to have been filed by the appellants on 17th March 2022. Another application dated 11th October 2022 was filed by the first appellant seeking temporary stay of proceedings and setting aside of the order dismissing the suit for non-attendance on 21st September 2022 and that the suit be reinstated for full hearing. A Notice to Act in Person dated 11th October 2022 was filed by the first appellant. The application was opposed by the respondent who filed replying affidavit dated 17th October 2022. The same motion was amended and dated 27th October 2022 to include a prayer that the first appellant be granted leave to act in person. That Amended Motion was disposed of by way of written submissions which both parties filed. Ruling on that Amended Motion was delivered on 15th June 2023, dismissing the motion. It is that dismissal that has precipitated the present appeal.
6. The appellants being dissatisfied with the said ruling and order, have presented the following as their grounds of appeal against that ruling and order:
1. THAT the Learned Magistrate erred in law and fact in in failing to hold that the applicants were entitled an opportunity to be heard on merit in a land case;
2. THAT the Learned Magistrate erred in law and in fact in holding that the Counsel’s mistakes shall be visited to the innocent litigant;
3. THAT the Learned Magistrate erred in law and in fact by not considering the authorities and submissions filed by the Applicants seeking the ex –parte judgment set aside contrary to trite law;
4. THAT the Learned Magistrate erred in law and fact and acted contrary to the sought orders in the main suit instead held the Respondent brief for eviction orders;
5. THAT the Learned Magistrate erred in law and in fact by not considering the reasons for not filing and serving the statement of defence within two days of making the orders.
7. The appellants seek the following orders, arranged in that order:
a. That the court do accord them an opportunity to be heard and defend the MLS CMC LAND CASE NO 142 of 2019 GEORGE KIIRU MIRINGU VERSUS CHARLES MTSONGA and FELISTER SIDI KABATHE and costs of this appeal;
b. The Appellants appeal be allowed and the order of the Learned Magistrate be set aside forthwith.
Submissions.
8. The appeal was disposed of by way of submissions which the only the appellants filed and which I have taken consideration of while preparing this judgment.
ANALYSIS AND DETERMINATION.
9. In the consideration of this court, the issues arising for determination in the present appeal are as follows:
a. Whether the learned trial Magistrate erred in law and in fact in not holding that the appellants were entitled to an opportunity to be heard on merits in a land case and in thus failing to set aside the ex parte judgment;
b. Whether the trial Magistrate erred in law and in fact in allowing the consequences of a counsel's mistakes to be visited on the appellants;
c. Whether the learned trial Magistrate went beyond to the orders sought in the main suit in her ruling;
10. For the appellants, it was submitted that they were represented by an advocate who did not comply with the court order; that the first appellant swore an affidavit stating that his advocate informed him of the ruling dated 9th March 2022 on 17th March 2022 which was 8 days after the ruling yet the orders of the court ought to have been complied with by 11th March 2022; that the advocate could not attend court on 21st September 2022 because he was bereaved and had instructed a Mr Obaga, advocate to hold his brief; that Mr Obaga had sworn an affidavit stating reasons why he did not attend court in time; that the 1st appellant had also stated in his supporting affidavit that he had informed the Court assistant that Mr Obaga was to hold brief, and that he did not hear the case being called out in court.
11. While agreeing that the court has discretion in setting aside orders, the appellants stated that they had a reasonable cause why they did not comply with Court orders and the mistake of the advocate ought not to be visited upon them, they having explained the date on which they got the court orders. They argue that the responsibility of filing defence was that of their advocates; that the defence was filed only 6 days later and the delay was thus not inordinate; that the court ought to have granted the appellants an opportunity to defend the suit, it being a land case; that this is one of the cases in which the Magistrate’s court should have exercise its discretion in their favor.
12. The appellants also dismissed the points of law raised by the respondent, terming them as "not points of law”. The appellant aver that the respondent did not also rebut the appellants’ averment that they were not informed by their advocates that the defence ought to have been file within 2 days of the court order.
13. The appellant relied on Civil Appeal Number 27 Of 2019 Kridha Limited Versus Peter Salai Kituri and also HCCA Number 499 Of 2017 - Valley View Office Park Limited Versus Paulo Barasa Ongweko and aver that the court ought to have considered the reasons why the appellants did not comply with its orders. They added that they had a defence to the claim, and further that there would be no prejudice occasioned to the respondent if they were allowed to defend the suit. It is also urged that the payment of throw away costs of Kshs 20,000 to the respondent was not to be done within a specific period of time.
14. The first issue is whether the learned trial Magistrate erred in law and in fact in not holding that the appellants were entitled to an opportunity to be heard on merits in a land case and in thus failing to set aside the ex parte judgment.
15. In her ruling, the learned trial Magistrate considered the appellants’ ground for the application to the effect that their counsel was bereaved and had instructed another advocate to hold her brief, but that the counsel so instructed had a matter pending before another court. She also considered response by the respondent to the effect that the appellants had earlier been granted orders of setting aside on condition that they filed a defence within 2 days with effect from 9th March 2022, but the said order was not complied with. She also considered that the throw away cost of Kshs 20,000/= were not paid. She considered the submission of the respondent that the said court orders had therefore been issued in vain; she considered the submission that the affidavit of Steve Obaga Advocate, who was meant to hold brief, is sworn in bad faith and at the same should not be considered by the court; finally, she considered that the appellants had failed to exercise their rights and slept on the same and that the court should not aid them.
16. The learned trial Magistrate commenced by indicating that it was not the first time for the first defendant to approach the seat of justice with the intention of reinstating the matter; that at the commencement of the suit, the defendants filed a memorandum of appearance dated 17th February 2019 but did not file in a defence as required by the law; that a request for judgment was consequently filed and the matter proceeded for formal proof; that on 4th June 2021 judgment was entered for the plaintiff in the decree issued on 18th June 2021. That an application was then made by the defendants to have the ex parte judgment set aside and for leave to file a defence, and defend the suit; that they said orders were granted and the defendants allowed to file the draft defence that had been attached to the application; that the defendant was to effect service of the said defence within 2 days and in default the orders issued would lapse and the interlocutory judgment would be deemed as being still in force; that the defendants were ordered to pay throw away costs of Kshs 20,000 which they did not pay; that as a result of their indolence, the defendants failed comply with the directions of the court and now they have they had returned to the court with yet another application. The learned trial Magistrate considered Order 10 Rule 11 of Civil Procedure Rules which provides that ex parte interlocutory judgment in default of appearance or defence may be set aside by the court. She also considered the case of Patel Versus East African Cargo Handling Services Limited 1974 EA 75 and Kenya Commercial Bank Limited Versus Nyantange & Another 1990 eKLR 443.
17. The learned trial Magistrate noted that on 21st September 2022 the court had made a ruling on the defence as filed by the defendants and stated that the same had been filed out of time and that the application before her was similar to the one that had been made earlier to set aside the ex parte judgment. She observed that despite being accommodated by the court the first defendant had failed to be vigilant in complying with the orders of the court and that he was yet again before the same court seeking similar orders.
18. Regarding the argument that the mistakes of counsel cannot be visited upon a client the learned trial Magistrate stated that it is the applicant’s case and not his counsel’s and that though he was represented, he ought to have been vigilant and in following up on his matter, and that the fact that an advocate has been paid to appear as a litigant’s representative should not meant that a litigant should not actively participate in the case. For that proposition, she referred to Neeta Gohil Versus Fidelity Commercial Bank Limited 2019 eKLR. The court also found that litigation must come to an end so that parties may move on to deal with other issues that concern their daily lives. She observed that the court is also tasked with dispensation of justice to other litigants and that having to deal with the same matter time again is a clear waste of judicial time and resources. She quoted the case of Muchanga Investments Limited Versus Safaris Unlimited African Limited and Two Others Civil Appeal Number 25 Of 2002 2009 eKLR 229. In the end she dismissed the application before her.
19. In respect of ground no 3 in the memorandum of appeal regarding setting aside, this court must clarify that perchance the learned Magistrate granted prayer no 3 in the amended motion, it would still have been an exercise in futility. The reason for such holding by this court is that no substantive order was made by the learned Magistrate on 21/9/2022. The court only observed that the earlier orders of court had not been complied with and also that the judgment was effective. Whether the defendant’s counsel was present at that date is therefore not material. The affidavit of Steve Obaga dated 11/10/2022 is a document that did not aid in the lower court, and still does not aid in this appeal, the appellants at all. In fact, it is regrettable that the herein appellants have taken Mr. Steve Obaga as a scapegoat and made him swear an affidavit to cloak their own earlier default in the matter. His affidavit was a red herring, meant to draw the court’s attention away from the real prayer in the application which was prayer no 4, which sought for the second time in the same matter leave to file defence. Consequently, any overtures as to setting aside in the present appeal must be eschewed as a waste of the court’s time. This court will refer to the issue of failure to grant leave to file the defence out of time.
20. This court, while considering the appellant’s arguments and the trial Magistrate’s reasoning, has reached the conclusion that the trial Magistrate did not state or find that the appellants were not entitled to an opportunity to be heard on the merits.
21. What she found was that they had been granted an opportunity to file their defence and that they had failed to do so. She also found that they had failed to follow up on their case in a diligent manner.
22. Lastly and most importantly, she had found that the application before her was similar to the application that had been filed earlier and it was therefore a waste of valuable judicial time and resources, which could have been applied to serving other deserving litigants.
23. It is correct that the judgment had already been set aside and the appellants had already been given an opportunity to file their defence and defend the case. It is therefore because of their indolence that they failed to seize that opportunity to re-enter into the proceedings reinvigorated by the very positive order that had been made in their favour, and defend their interests.
24. A court of law is not obliged to assist indolent litigants. It is also correct that a court of law has many other cases filed by other parties and a litigant must always have that in mind while prosecuting his case.
25. Court orders are also made to be obeyed. On numerous occasions courts have dismissed suits and applications for want of compliance with Court orders which obstructs the case from progressing towards conclusion. It is no different in this case. A self-executing order had already been made in the ruling dated 9th March 2022 which entrusted the fate of the suit into the hands of the appellants. The power of saving themselves from, or reverting themselves into, an ex parte judgment that threatened their interests was thus placed squarely in their hands. Also, and as a matter of striking what appears to me a very prudent balance between the interests of the parties, that ruling included a self-executing mechanism that also ensured that if the appellant continued with their indolence and failed to file defence, they would have only themselves to blame, the court would not come to their aid anymore, and the respondent herein did not have to resort to wasting time in applying to court for any further orders for reinstatement of the judgment. I am certain that the nature of the orders sought reflected the fact that the court had observed that the conduct of the appellants in the matter from the beginning was not one characterized by integrity and has washed its hands clean of any blame in the event that the appellants failed to comply. That kind of order should have sent the signal to the appellant of the high threshold of diligence that the court henceforth expected of them in the conduct of their defence.
26. The automatic consequence of their indolence and default was that the judgment delivered by the court came back into force without any action on the part of the parties or of the court.
27. Consequently, this Court does not find that the learned trial Magistrate in law and in fact in failing to set aside the ex parte judgment, which prayer had not been made in the application, or in refusing leave to file defence out of time.
28. Regarding the second issue as to whether the trial Magistrate held in law in allowing the consequence of counsel’s mistakes to be visited upon the appellants, it is clear that the learned trial Magistrate, by holding that the defendants failed to be proactive in the matter, shifted blame on them for their debacle. She relied on the case of Neta Gohill Versus Fidelity Commercial Bank Limited 2019 Eklr for her holding.
29. This court finds that the learned trial Magistrate did not hold that the consequences of the advocate’ mistake should be visited upon the appellants, but that she held the appellants, as the owners of the said litigation, accountable for the diligent pursuit of their case since it did not belong to the advocate. She found that they were not diligent enough.
30. In this court’s view, it behoved the appellants to demonstrate to this court that the trial Magistrate wrongfully exercised her discretion which is usually a very high hurdle to clear in appeals against decisions dismissing setting aside applications. I have gone beyond the impugned ruling and examined the affidavit evidence supporting the amended application it originated from. It was sworn by the 1st appellant. Annextures CM1 and CM2 and CM3 are missing even from the record of appeal. Which means that they were also not provided to the lower court with the application. Even assuming that a second application could be made regarding the said subject which is doubtful due to the res judicata rule, this is sloppiness of a kind not befitting of applicants in such a weighty a second application for setting aside. It also means that the statements in paragraphs 2 and 3 of the application are totally unsubstantiated. In any event, whether there was communication of any sort by way of email, there is no justification that was provided to the learned Magistrate as to why the appellants never made a physical visit to the advocate’s office to follow up on such a sensitive matter on the date of the ruling.
31. In this court view when a client approaches a court accusing an advocate of negligence, he must also demonstrate that he effectively played his proper role in the entire scheme of things intended to make his litigation move forward. Any element of default on his part, however minor, in following up on his case with an advocate, ought to be weighed against the need to do justice to the other compliant party in the same case. That default should, especially where it is not properly explained, disentitle the applicant from the exercise of the court’s discretion to set aside in his favour. It should cast doubt in the court's mind as to whether the advocate should be indeed be entirely blamed for any omission in the litigation process.
32. Concerning the last issue framed for determination herein, it is abundantly clear from the comprehensive analysis above that in her ruling, the learned Magistrate never went beyond to the orders sought in the main suit nor held the respondent’s brief as alleged in the memorandum of appeal. In any event, that ground has not been ventilated in the appellant’s submissions in the present appeal and it fails.
33. The upshot of the foregoing is that none of the grounds in the Amended Memorandum of Appeal dated 27th September 2024 has merit and the entire appeal is hereby dismissed with costs to the respondent.
Dated, signed and delivered at Malindi via electronic mail on this 30th day of June 2025.
a. A permanent injunction to issue restraining the first and second Appellants jointly and severally by themselves, servants, agents, employees or any other person claiming through them from trespassing entering remaining, alienating and or dealing with the suit property known as unregistered plot belonging to the Respondent measuring to the west 64.4 m, to the north 56.5 m to the east 35m plus 12.5 m and to the South 40.5 m or as particularly fenced using concrete poles in any manner.
b. Costs.
2. In the plaint, the Respondent stated that he has a good root cause of title to the suit property dating back to the 1970s having purchased it from Jane Njeri Miringo who had purchased it by way of agreements dated 16th August 2016 and 20th December 2013 respectively from one Thoya Shida Alfred (now deceased) who had been in possession and ownership since 6th February 2009, having purchased it from a 1970s squatter. The Respondent averred that there had been a boundary dispute on the upper eastern side of his property bordering the Appellants and the issue was marked as settled before the Area Assistant Chief. The Respondent stated that the person who had sold the Appellants their land had clearly indicated the measurement and shape of the property sold to them. That land borders the Respondent’s land to the east. The Respondent stated that in total disregard to the Respondent's proprietary rights, the Appellants fixed a permanent fence in the middle of the Respondent’s land and commenced building illegal permanent structures thereon. It is averred by the Respondent that the Appellants have offended his constitutional right to property by referring to him as a “non-local” and the area assistant chief as “a woman”. Consequently, the Appellants trespassed into his plot commenced construction of illegal structures and a wall on the eastern end thus depriving the Respondent of the access, use and quiet enjoyment of the suit property, hence the suit. It was stated that reports to the police are yielded no fruit.
3. Together with a plaint was filed a Notice of Motion of even date, seeking injunctive orders restraining the Appellants from interfering with the suit land.
4. The Appellants entered appearance in the lower court case through the firm of Mouko and Company on 17th December 2019. The respondent applied for judgment in default of defence and appearance against the appellants on 27th October 2020. The suit was heard ex parte and judgment delivered on 4th June 2021 in favour of the respondent. A decree dated 4th June 2021 was extracted. An application for setting aside judgment dated 9th July 2021 was filed on 12th July 2021 by the appellants. That application was opposed by the respondent by way of a replying affidavit sworn 14th July 2021. A ruling dated 9th March 2022 in respect of that application set aside the interlocutory judgment in the matter on certain conditions as follows, verbatim:
i. “The statement of defence shall be deemed to be properly filed and served upon payment of the prerequisite court filing fees;
ii. The applicant shall file the said statement of defence duly signed and dated within 2 days of this order;
iii. In default of compliance with order given in (i) and (ii) then the order vacating the interlocutory judgment shall automatically lapse without further reference to the (sic) this court;
iv. The defendants/applicants to pay throw away costs of Kshs 20,000/- to the plaintiff/ respondent.”
5. A statement of defence appeared to have been filed by the appellants on 17th March 2022. Another application dated 11th October 2022 was filed by the first appellant seeking temporary stay of proceedings and setting aside of the order dismissing the suit for non-attendance on 21st September 2022 and that the suit be reinstated for full hearing. A Notice to Act in Person dated 11th October 2022 was filed by the first appellant. The application was opposed by the respondent who filed replying affidavit dated 17th October 2022. The same motion was amended and dated 27th October 2022 to include a prayer that the first appellant be granted leave to act in person. That Amended Motion was disposed of by way of written submissions which both parties filed. Ruling on that Amended Motion was delivered on 15th June 2023, dismissing the motion. It is that dismissal that has precipitated the present appeal.
6. The appellants being dissatisfied with the said ruling and order, have presented the following as their grounds of appeal against that ruling and order:
1. THAT the Learned Magistrate erred in law and fact in in failing to hold that the applicants were entitled an opportunity to be heard on merit in a land case;
2. THAT the Learned Magistrate erred in law and in fact in holding that the Counsel’s mistakes shall be visited to the innocent litigant;
3. THAT the Learned Magistrate erred in law and in fact by not considering the authorities and submissions filed by the Applicants seeking the ex –parte judgment set aside contrary to trite law;
4. THAT the Learned Magistrate erred in law and fact and acted contrary to the sought orders in the main suit instead held the Respondent brief for eviction orders;
5. THAT the Learned Magistrate erred in law and in fact by not considering the reasons for not filing and serving the statement of defence within two days of making the orders.
7. The appellants seek the following orders, arranged in that order:
a. That the court do accord them an opportunity to be heard and defend the MLS CMC LAND CASE NO 142 of 2019 GEORGE KIIRU MIRINGU VERSUS CHARLES MTSONGA and FELISTER SIDI KABATHE and costs of this appeal;
b. The Appellants appeal be allowed and the order of the Learned Magistrate be set aside forthwith.
Submissions.
8. The appeal was disposed of by way of submissions which the only the appellants filed and which I have taken consideration of while preparing this judgment.
ANALYSIS AND DETERMINATION.
9. In the consideration of this court, the issues arising for determination in the present appeal are as follows:
a. Whether the learned trial Magistrate erred in law and in fact in not holding that the appellants were entitled to an opportunity to be heard on merits in a land case and in thus failing to set aside the ex parte judgment;
b. Whether the trial Magistrate erred in law and in fact in allowing the consequences of a counsel's mistakes to be visited on the appellants;
c. Whether the learned trial Magistrate went beyond to the orders sought in the main suit in her ruling;
10. For the appellants, it was submitted that they were represented by an advocate who did not comply with the court order; that the first appellant swore an affidavit stating that his advocate informed him of the ruling dated 9th March 2022 on 17th March 2022 which was 8 days after the ruling yet the orders of the court ought to have been complied with by 11th March 2022; that the advocate could not attend court on 21st September 2022 because he was bereaved and had instructed a Mr Obaga, advocate to hold his brief; that Mr Obaga had sworn an affidavit stating reasons why he did not attend court in time; that the 1st appellant had also stated in his supporting affidavit that he had informed the Court assistant that Mr Obaga was to hold brief, and that he did not hear the case being called out in court.
11. While agreeing that the court has discretion in setting aside orders, the appellants stated that they had a reasonable cause why they did not comply with Court orders and the mistake of the advocate ought not to be visited upon them, they having explained the date on which they got the court orders. They argue that the responsibility of filing defence was that of their advocates; that the defence was filed only 6 days later and the delay was thus not inordinate; that the court ought to have granted the appellants an opportunity to defend the suit, it being a land case; that this is one of the cases in which the Magistrate’s court should have exercise its discretion in their favor.
12. The appellants also dismissed the points of law raised by the respondent, terming them as "not points of law”. The appellant aver that the respondent did not also rebut the appellants’ averment that they were not informed by their advocates that the defence ought to have been file within 2 days of the court order.
13. The appellant relied on Civil Appeal Number 27 Of 2019 Kridha Limited Versus Peter Salai Kituri and also HCCA Number 499 Of 2017 - Valley View Office Park Limited Versus Paulo Barasa Ongweko and aver that the court ought to have considered the reasons why the appellants did not comply with its orders. They added that they had a defence to the claim, and further that there would be no prejudice occasioned to the respondent if they were allowed to defend the suit. It is also urged that the payment of throw away costs of Kshs 20,000 to the respondent was not to be done within a specific period of time.
14. The first issue is whether the learned trial Magistrate erred in law and in fact in not holding that the appellants were entitled to an opportunity to be heard on merits in a land case and in thus failing to set aside the ex parte judgment.
15. In her ruling, the learned trial Magistrate considered the appellants’ ground for the application to the effect that their counsel was bereaved and had instructed another advocate to hold her brief, but that the counsel so instructed had a matter pending before another court. She also considered response by the respondent to the effect that the appellants had earlier been granted orders of setting aside on condition that they filed a defence within 2 days with effect from 9th March 2022, but the said order was not complied with. She also considered that the throw away cost of Kshs 20,000/= were not paid. She considered the submission of the respondent that the said court orders had therefore been issued in vain; she considered the submission that the affidavit of Steve Obaga Advocate, who was meant to hold brief, is sworn in bad faith and at the same should not be considered by the court; finally, she considered that the appellants had failed to exercise their rights and slept on the same and that the court should not aid them.
16. The learned trial Magistrate commenced by indicating that it was not the first time for the first defendant to approach the seat of justice with the intention of reinstating the matter; that at the commencement of the suit, the defendants filed a memorandum of appearance dated 17th February 2019 but did not file in a defence as required by the law; that a request for judgment was consequently filed and the matter proceeded for formal proof; that on 4th June 2021 judgment was entered for the plaintiff in the decree issued on 18th June 2021. That an application was then made by the defendants to have the ex parte judgment set aside and for leave to file a defence, and defend the suit; that they said orders were granted and the defendants allowed to file the draft defence that had been attached to the application; that the defendant was to effect service of the said defence within 2 days and in default the orders issued would lapse and the interlocutory judgment would be deemed as being still in force; that the defendants were ordered to pay throw away costs of Kshs 20,000 which they did not pay; that as a result of their indolence, the defendants failed comply with the directions of the court and now they have they had returned to the court with yet another application. The learned trial Magistrate considered Order 10 Rule 11 of Civil Procedure Rules which provides that ex parte interlocutory judgment in default of appearance or defence may be set aside by the court. She also considered the case of Patel Versus East African Cargo Handling Services Limited 1974 EA 75 and Kenya Commercial Bank Limited Versus Nyantange & Another 1990 eKLR 443.
17. The learned trial Magistrate noted that on 21st September 2022 the court had made a ruling on the defence as filed by the defendants and stated that the same had been filed out of time and that the application before her was similar to the one that had been made earlier to set aside the ex parte judgment. She observed that despite being accommodated by the court the first defendant had failed to be vigilant in complying with the orders of the court and that he was yet again before the same court seeking similar orders.
18. Regarding the argument that the mistakes of counsel cannot be visited upon a client the learned trial Magistrate stated that it is the applicant’s case and not his counsel’s and that though he was represented, he ought to have been vigilant and in following up on his matter, and that the fact that an advocate has been paid to appear as a litigant’s representative should not meant that a litigant should not actively participate in the case. For that proposition, she referred to Neeta Gohil Versus Fidelity Commercial Bank Limited 2019 eKLR. The court also found that litigation must come to an end so that parties may move on to deal with other issues that concern their daily lives. She observed that the court is also tasked with dispensation of justice to other litigants and that having to deal with the same matter time again is a clear waste of judicial time and resources. She quoted the case of Muchanga Investments Limited Versus Safaris Unlimited African Limited and Two Others Civil Appeal Number 25 Of 2002 2009 eKLR 229. In the end she dismissed the application before her.
19. In respect of ground no 3 in the memorandum of appeal regarding setting aside, this court must clarify that perchance the learned Magistrate granted prayer no 3 in the amended motion, it would still have been an exercise in futility. The reason for such holding by this court is that no substantive order was made by the learned Magistrate on 21/9/2022. The court only observed that the earlier orders of court had not been complied with and also that the judgment was effective. Whether the defendant’s counsel was present at that date is therefore not material. The affidavit of Steve Obaga dated 11/10/2022 is a document that did not aid in the lower court, and still does not aid in this appeal, the appellants at all. In fact, it is regrettable that the herein appellants have taken Mr. Steve Obaga as a scapegoat and made him swear an affidavit to cloak their own earlier default in the matter. His affidavit was a red herring, meant to draw the court’s attention away from the real prayer in the application which was prayer no 4, which sought for the second time in the same matter leave to file defence. Consequently, any overtures as to setting aside in the present appeal must be eschewed as a waste of the court’s time. This court will refer to the issue of failure to grant leave to file the defence out of time.
20. This court, while considering the appellant’s arguments and the trial Magistrate’s reasoning, has reached the conclusion that the trial Magistrate did not state or find that the appellants were not entitled to an opportunity to be heard on the merits.
21. What she found was that they had been granted an opportunity to file their defence and that they had failed to do so. She also found that they had failed to follow up on their case in a diligent manner.
22. Lastly and most importantly, she had found that the application before her was similar to the application that had been filed earlier and it was therefore a waste of valuable judicial time and resources, which could have been applied to serving other deserving litigants.
23. It is correct that the judgment had already been set aside and the appellants had already been given an opportunity to file their defence and defend the case. It is therefore because of their indolence that they failed to seize that opportunity to re-enter into the proceedings reinvigorated by the very positive order that had been made in their favour, and defend their interests.
24. A court of law is not obliged to assist indolent litigants. It is also correct that a court of law has many other cases filed by other parties and a litigant must always have that in mind while prosecuting his case.
25. Court orders are also made to be obeyed. On numerous occasions courts have dismissed suits and applications for want of compliance with Court orders which obstructs the case from progressing towards conclusion. It is no different in this case. A self-executing order had already been made in the ruling dated 9th March 2022 which entrusted the fate of the suit into the hands of the appellants. The power of saving themselves from, or reverting themselves into, an ex parte judgment that threatened their interests was thus placed squarely in their hands. Also, and as a matter of striking what appears to me a very prudent balance between the interests of the parties, that ruling included a self-executing mechanism that also ensured that if the appellant continued with their indolence and failed to file defence, they would have only themselves to blame, the court would not come to their aid anymore, and the respondent herein did not have to resort to wasting time in applying to court for any further orders for reinstatement of the judgment. I am certain that the nature of the orders sought reflected the fact that the court had observed that the conduct of the appellants in the matter from the beginning was not one characterized by integrity and has washed its hands clean of any blame in the event that the appellants failed to comply. That kind of order should have sent the signal to the appellant of the high threshold of diligence that the court henceforth expected of them in the conduct of their defence.
26. The automatic consequence of their indolence and default was that the judgment delivered by the court came back into force without any action on the part of the parties or of the court.
27. Consequently, this Court does not find that the learned trial Magistrate in law and in fact in failing to set aside the ex parte judgment, which prayer had not been made in the application, or in refusing leave to file defence out of time.
28. Regarding the second issue as to whether the trial Magistrate held in law in allowing the consequence of counsel’s mistakes to be visited upon the appellants, it is clear that the learned trial Magistrate, by holding that the defendants failed to be proactive in the matter, shifted blame on them for their debacle. She relied on the case of Neta Gohill Versus Fidelity Commercial Bank Limited 2019 Eklr for her holding.
29. This court finds that the learned trial Magistrate did not hold that the consequences of the advocate’ mistake should be visited upon the appellants, but that she held the appellants, as the owners of the said litigation, accountable for the diligent pursuit of their case since it did not belong to the advocate. She found that they were not diligent enough.
30. In this court’s view, it behoved the appellants to demonstrate to this court that the trial Magistrate wrongfully exercised her discretion which is usually a very high hurdle to clear in appeals against decisions dismissing setting aside applications. I have gone beyond the impugned ruling and examined the affidavit evidence supporting the amended application it originated from. It was sworn by the 1st appellant. Annextures CM1 and CM2 and CM3 are missing even from the record of appeal. Which means that they were also not provided to the lower court with the application. Even assuming that a second application could be made regarding the said subject which is doubtful due to the res judicata rule, this is sloppiness of a kind not befitting of applicants in such a weighty a second application for setting aside. It also means that the statements in paragraphs 2 and 3 of the application are totally unsubstantiated. In any event, whether there was communication of any sort by way of email, there is no justification that was provided to the learned Magistrate as to why the appellants never made a physical visit to the advocate’s office to follow up on such a sensitive matter on the date of the ruling.
31. In this court view when a client approaches a court accusing an advocate of negligence, he must also demonstrate that he effectively played his proper role in the entire scheme of things intended to make his litigation move forward. Any element of default on his part, however minor, in following up on his case with an advocate, ought to be weighed against the need to do justice to the other compliant party in the same case. That default should, especially where it is not properly explained, disentitle the applicant from the exercise of the court’s discretion to set aside in his favour. It should cast doubt in the court's mind as to whether the advocate should be indeed be entirely blamed for any omission in the litigation process.
32. Concerning the last issue framed for determination herein, it is abundantly clear from the comprehensive analysis above that in her ruling, the learned Magistrate never went beyond to the orders sought in the main suit nor held the respondent’s brief as alleged in the memorandum of appeal. In any event, that ground has not been ventilated in the appellant’s submissions in the present appeal and it fails.
33. The upshot of the foregoing is that none of the grounds in the Amended Memorandum of Appeal dated 27th September 2024 has merit and the entire appeal is hereby dismissed with costs to the respondent.
Dated, signed and delivered at Malindi via electronic mail on this 30th day of June 2025.