JUDGMENT
1. The Appellant Lekunini Ole Sanduku being aggrieved by the Ruling of Hon. W.C Waswa delivered on 30th of April 2025 in Kilgoris PMCC No. E094 of 2023, filed the Memorandum of Appeal dated 13th of May 2025, seeking for orders
(a) That the Appeal be allowed.
(b) The judgment and Ruling of Hon. W.C Waswa be reversed.
(c) The case be referred back to the Magistrates court for fresh hearing and determination.
2. The Appellant penned 13 grounds of Appeal, which the court shall not reproduce herein but shall consider each of them in the determination of the Appeal, but basically the Appeal revolves around the fact that the Appellant as a defendant in the trial court was not afforded a chance to adduce evidence during trial thus being denied the right to a fair hearing as enshrined under Article 50 of the Constitution of Kenya.
3. The Record of Appeal was not complete which necessitated a supplementary Record of Appeal to be filed.
4. The Appeal was filed on behalf of the Appellant by the firm of Netuya Pion Advocate whose proprietor Ms. Pion Advocate has since joined the bench and was taken over by Mrs. Kiprotich Roberts Advocates, while the Respondent was represented by Messrs Miruka and Co. Advocates.
5. Upon admission of the Appeal parties were directed to file and serve written submissions on the Appeal; which the court summarises as follows;
Appellants Submissions
6. The Appellant framed and submitted on two issues for determination.
7. On issue 1, the Appellant submitted that the learned trial Magistrate erred in law and in fact by allowing the suit to proceed exparte and by entering Judgment despite the Appellant having fully complied with order 11 of the Civil Procedure Rules and being ready to proceed with hearing. Reliance was placed on the decision in the case of Shah Vs. Mbogo and Another (1967) EA 116.
8. The Appellant submits that the application for review and/or setting aside whose ruling provokes this appeal ought to have been allowed. Since no judgment notice was ever served upon them. Reliance was placed in Philip Chemwolo and Another Vs. Augustine Kubende (1986) KCR 1995.
9. On issue No. 2, the Appellant submits that the only just and equitable remedy is reinstatement of the suit and it be remitted to the trial court for a fresh hearing on its merits.
10. The Appellant placing reliance on the decision in the case of Tree shade Motor Limited Vs. D.T Dobie and Co. Ltd submits that even if the judgment was regularly obtained, the court has unfettered discretion to set it aside if the defence raises triable issues, and that the plaintiff could be awarded by an award of costs.
11. The Appellant thus submits that the Appeal be allowed and judgment be set aside so as to afford the right to be heard under Article 50(1) of the Constitution.
Respondent’s Submission
12. On his part the Respondent has framed on one main issue and the incidental issue of costs.
13. On issue number 1, the Respondent submits that the suit herein ought not to be reinstated since the hearing date had been taken by consent of both counsels; and on the hearing date both counsels took time allocation for hearing at 9.30 am but the Applicants counsel was a no-show and the mater proceeded, judgment delivered and an application to set aside file and thereafter it was dismissed provoking this Appeal. On the strength of the decision in Ibrahim Mungara Mwangi Vs. Francis Ndegwa Mwangi (2014) eKLR as well as Thorn PLC Vs. Macdonald and Maulid Magingi Mwabaraza Vs. Sifa Investment Ltd.
14. The Respondent submits that the Appeal be dismissed with costs.
Issues for Determination
15. Having analysed the Record of Appeal and submissions, and considered the law, the court frames two issues for determination, to wit,
(i) Whether or not the Appeal is merited, and in determining this the court shall consider whether or not the application dated 18.03.2025 was merited?
(ii) Who bears the cost of the Appeal?
Analysis and Determination
16. In fulfilment of the duties of a first Appellate court as stated in Selle Vs. Associated Motor Boat Co. (1968) EA 123. The duties to “reconsider the evidence, evaluate it and draw its own conclusion”.
17. The court has analysed the Record of Appeal the proceedings of 03.11.2024 appearing at page 47-49 of the Record of Appeal, the said proceedings reveal that both Advocates parties were present and matter was called later at 11.53 am when Ms. Pion Learned Counsel for the Defendant was absent and matter proceeded from 12.00 pm when the plaintiff testified and closed his case the court closed the defence case, and judgment reserved for 23.01.2025.
18. An application to set aside the said judgment was filed and the main ground for non-attendance of Ms. Pion during the hearing was that she was within the court precints but attended to a matter before the High court being Murder Case No. E009/2024, R. Vs Maison Obiki Masira hence could not proceed at the allocated time; and that no judgment notice was issued to her firm after the matter proceeded, thus rendering the judgment, an exparte judgment.
19. Counsel was said to have appeared before the High court in a matter scheduled before the High court on the said date but did not communicate the same, and was only available at 12.27 am at which time the matter had proceeded, given that the Applicant was represented since the Appellant was represented, and the application to set aside, was filed after 2 months, and that no judgment notice was issued to the Applicant so as to know the when the date for judgment had been slated, the court finds the reasons for non-attendance to be plausible and sufficient
20. This being an exparte judgment where a defence had been filed, the trial ought to have set aside the judgment, so as to given the defendant a chance to be heard on his defence.
21. The court thus finds that the reasons advanced in the Notice of Motion dated 18.03.2025 were sufficient reasons for the court to exercise its discretion.
22. Vide the Ruling dated 30.04.2025 the court declined to grant the application for review provoking this Appeal. Was the application dated 18.03.2025 mertied?
23. In its Ruling the trial court that it had unfettered discretion in deciding whether or not to set aside a judgment which discretion ought to be exercised judiciously and relied on the decision in Phiton Waweru Maina Vs. Thuka Mugiria (1983) eKLR, and found that the defendant ought to have been aware when the judgment had been reserved, and that the matter belonged to a litigant and not to counsel and found the application to lack merits.
24. Indeed, on the date that the matter was scheduled for hearing the Applicants advocate was present in court and conformed the matter for hearing, his client was also present in court, thus showing a desire the defend the matter.
25. The Appellants filed an application to set aside the judgment obtained vide non-attendance under order 10 Rule 11, which grants court powers to set aside exparte judgments when sufficient reasons are granted.
26. Having found the reasons to have been sufficient and that the application was merited, the court finds the Appeal to be equally merited and allows the same.
27. The court thus allows the Appeal but declines to make any order as to costs.
28. The matter is remitted to the Chief Magistrate court to be heard by any Magistrate other than Hon. W.C Waswa, the matter shall be heard on priority basis.
Dated at Kilgoris this 29th day of June 2026
Hon. M.N. Mwanyale
Judge
In the presence of
CA – Sylvia/Clara
Mr. Miruka for Respondent
Mr. Kiprotich for Appellant
| Page 1 | 1 |