INTERSPAR LIMITED VS ARM CEMENT PLC (UNDER ADMINISTRATION) INTERSPAR LIMITED VS ARM CEMENT PLC (UNDER ADMINISTRATION)

INTRODUCTION

The appellant by way of a memorandum of appeal dated the 29^th December 2023 has appealed against the Ruling of the learned Honorable Magistrate delivered on 18^th December 2023 on the following grounds :
The Trial Court erred in law and fact in failing to consider that the Defendant's Defence and Counterclaim dated 5th June, 2023 had already been filed and was part of the Court's record and that the reasons pleaded for the unintentional delay of 2 days in filing of the Appellant's Defence and Counterclaim on 15th October, 2023 instead of 13th October, 2023 were justifiable and excusable.
The Learned Magistrate erred in law and fact in failing to consider that the Appellant's Advocate's mistake in computation of the limits of the 14 days' leave to file a Defence granted on 29th September, 2023 by omitting the public holiday of 10th October, 2023 and the weekend of 14th and 15th October, 2023 where the last day landed according to the Appellant's Advocate's calculations was a genuine mistake and that it was an unintended and inadvertent oversight.
The Trial Court erred in law and fact by failing to find that the Appellant's Advocate's misinterpretation of Order 50 Rule 2 of the Civil Procedure Rules, 2010 as read together with section 57(d) of The Interpretation and General Provisions Act, Chapter 2, Laws of Kenya, and Article 259(6) of the Constitution of Kenya, 2010 thereby giving rise to a 2-day delay in filing the Appellant's Defence and Counterclaim was not intentional and that the consequences thereof ought not to be visited upon an innocent litigant.
The Trial Court erred in law and fact in failing to consider that the Appellant could not have applied for extension of time before the 13th October, 2023 for reasons that the Appellant's Advocate genuinely believed that the Defence and Counterclaim were filed on time and that the Appellant had up to 16th October, 2023 to file the Defence.
The Trial Court erred in law and fact by finding that in their Notice of Motion Application dated 1st November, 2023, the Appellant had not made a prayer for setting aside of the expärte Default Judgment earlier entered on 28th April, 2023 whereas the other reliefs sought by the Appellant to either (a) extend time for filing of a Defence and to deem the Defence and Counterclaim dated 5th June, 2023 as properly file or (b) to grant leave to the Appellant to file its Defence, if allowed, would have the exact same effect as setting aside the exparte Default Judgment.
The Honourable Magistrate improperly exercised its discretion contrary to Article 159(2)(d) of the Constitution of Kenya, 2010 to deny the Appellant a fair hearing and opportunity to be heard its Defence and Counterclaim which had already been filed and served by allowing the Respondent to rely on a technicality to enforce an exparte Default Judgment without proving its case.
The Trail Court failed to act evenly and dispassionately by failing to find that it would be in the best interests of justice to set down the suit for hearing on priority basis.
The Trial Court omitted to consider that the only way to do substantial justice to the parties in the prevailing circumstances of the case was to allow the Appellant's Notice of Motion Application dated 1st November, 2023 and to set down the suit for hearing on priority basis.
The Learned Court erred in law and in fact in determining that the Appellant had been indolent and that they had not obeyed Court Orders whereas the Appellant had complied with both of the Court's orders to pay throw away costs, which it did on time, and to file its Defence, which it filed on 15th October, 2023 in the genuine belief that the same was also filed on time.
The Trial Court erred in law and fact and in the process acted harshly and unevenly by finding that the Appellant seem not to care acting in a timely manner in responding to pleadings and that the Appellant has all along not seen any importance in complying with Court Orders or meeting set timelines whereas the Honourable Trial Court had already considered without prejudice communication exchanged by the parties through which in its ruling delivered on 29th September, 2023 the Trial Court recognised that from the time the suit was filed the parties had been engaged in formal out of court negotiations which the Appellant genuinely believed could compromise or otherwise settle the dispute.
The Trial Court erred in law and fact by failing to find that a litigant ought not to suffer on áccount of the mistakes of an Advocate.
The Trial Court erred in law and fact in failing to consider that no prejudice would befall the Respondent if the matter were set down for hearing of the main suit as a Defence and Counterclaim had already been filed, served and was part of the Court's record.
The Honorable Magistrate erred and acted harshly by failing to subject the rival evidence of the parties the legal test of a trial hearing instead allowing judgment on technicality and in the process unfairly exposing the Appellant to a colossal and unproven loss of approximately Kshs. 7,049,439.87.
The Trial Court misdirected herself on the law and the facts and in the process exercised its discretion injudiciously by failing to appreciate that the Court had the discretion under prayer 6 of the Appellant's Notice of Motion Application dated 1st November, 2023 to order for the setting aside of the exparte Default Judgment
The Trial Court erred in law and fact in dismissing the Appellant's Notice of Motion Application dated 1st November, 2023 when the Respondent had not disclosed any prejudice which they would suffer if the said Application were allowed so that the suit could proceed for hearing.
The Trial Court misconstrued the law and the facts and in the process abdicated its duty by allowing a claim and at the same time dismissing a Defence and Counterclaim on the same technicality without a hearing whereas the section 5 of the Civil Procedure Act grants the Trial Court jurisdiction to hearing any and all suits of a civil nature, the instant dispute included.
The Learned Magistrate took into account irrelevant matters, made contradictory findings and showed open bias against the Appellant, as a result arriving at an erroneous decision based on the wrong legal principles.
The Learned Magistrate fell into error and in the process acted contrary to the rules of natural justice by failing to appreciate the overriding objectives of the Court's rules of civil procedure as read together with Article 47, 50 and 159 of the Constitution of Kenya, 2010.
The appellant is basically challenging the exercise of judicial discretion by the learned Honorable Magistrate in declining to extend time to entertain the appellants defence which was filed out of time against the express orders of the learned Honorable magistrate on 29^th September 2023.
The parties agreed to have the appeal disposed off by way of written submissions which each of the parties filed and this court has duly considered.
The issue that emerge in this appeal are:
Whether the learned Honorable magistrate properly exercised his discretion in dismissing the appellants application for extension of time for the filing of the defence.
Whether the extension of time had the effect of setting aside the default judgement.
Whether the default judgment was entered in error and contrary to applicable law.

ANALYSIS AND DETERMINATION

The appeal invites the court to interfere with the exercise of a judicial discretion by the learned Honorable magistrate.
The principles that bind the court in considering an appeal are well set out in the case of Mbogo Vs SHAH (1966) E.A 93 at Page 195. The East African Court of Appeal stated:

“I think it is well settled that this Court will not interfere with the exercise
of its discretion by an inferior court unless it is satisfied that its 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 takeinto consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
The court should not be inclined to interfere with exercise of judicial discretion just because if the appeal court would have heard the matter its exercise of discretion would have been different.
The appellant in this matter was clearly a beneficiary of the court’s favorite exercise of discretion in the Ruling delivered on 29^th September 2023.
The orders of the court in that ruling were specific and time bound.
The appellants having approached the trial in the first instance to set aside the default judgment , were under obligation to ensure that the orders granted in their favor were specifically complied with.
The trial court had specifically ordered that the appellant was to file his defence with 14 days from the date of the Ruling and in the event of non compliance with that order the orders setting aside would lapse automatically.
The appellant did not file the defence within the timeline specified by the court thus the setting aside orders issued on 29^th September 2023 lapsed automatically.
The claim by the appellants that the court in declining to extend time was injudicious exercise of judicial discretion is thus made without merit.
The application for extension of time is a prayer for equitable relief by the court.
No party has an automatic right to an order for extension of time.
In Nicholas Kiptoo Korir Arap Salet Vs. IEBC [2014] eKLR the Supreme Court laid out the principles that guide the court in the exercise of judicial discretion to extend time. The court stated as follows ::
i. Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
ii. A party who seeks extension of time has the burden of laying basis to the satisfaction of the court.
iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.
iv. Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.
v. Whether there will be any prejudice suffered by the Respondent if extension is granted.
vi. Whether the application has been brought without undue delay.
vii. Whether in certain cases public interest should be a consideration for extension of time.
It is clear from a reading of the Supreme Court decision that the discretion to extend is for the court and an order for extension of time is an equitable relief.
The appellant was seeking to have the court extend what I would consider to be judicial mercy upon him. He had already been granted an order for setting aside. The court was very reasonable in setting aside the default judgment. He however went and slept on the order.
The principles of equity are clear that equity does not come to the aid of the indolent. The appellant in this courts view was guilty of indolence and he stretched his luck too far.
The appellant cannot be heard to claim that the delay of two days was not in ordinate. The law does not specify any number of days , months or years that a court can and or should consider inordinate.
The defence as per the orders of the court ought to have been filed by 13^th October. The appellant states that they filed on 15^th October 2023. The delay going by the appellant’s indication was by two days. The order by the trial court to the effect that after the lapse of 14 days the setting aside orders would lapse automatically has already taken effect and therefore there was nothing left to extend .
The order of 29^th September 2023 was self executing thus the learned Honorable magistrate was correct in declining the application for extension of time.
The order declining to extend time was perfectly legal and correct.
In determining whether delay is reasonable or not the court will determine that aspect depending on the peculiar aspects of the case. The court of Appeal in Andrew Kiplangat Chemaringo Vs. Paul Kipkorir Kibet [2018] eKLR held:

The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

In the instant case the explanation offered for the delay in filing the defence was in my view unsatisfactory thus the court below was correct in dismissing the application.
Courts do not issue orders in vain and court orders must be obeyed. It would be tantamount to vexing a court for a litigant to seek to set aside a default judgement and upon being granted the order to file a defence the party goes to slumberland only to resurface with an application for extension of time of the setting aside order. That in my view would be a classic case of encouraging indolence in the judicial process by litigants. Court orders must mean something to all and particularly to a party in whose favor they are issued.
The appellant here was guilty of laches and he must live with the consequences of his in action.
The court finds that this appeal has no merit and the same is dismissed with no costs.
It is so ordered.