National Bank Ltd VS Pamela Ogalo Oguta National Bank Ltd VS Pamela Ogalo Oguta

INTRODUCTION

The appellant is aggrieved by the decision of the learned Honorable magistrate declining to review the decision to close the defense case.
The appellant alleges that the matter is the Lower court came up for defense hearing but the defense case was closed under the mistaken belief by counsel for the appellant that the defendant had not filed any statements or documents in support of the defense case.
The appellant in the appeal has raised several grounds in the memorandum of appeal to wit:-
The learned trial magistrate erred in law and in fact in failing to find that the applicant had a right to be heard.
The learned trial magistrate erred in law and in fact by failing to take into account the fact that the appellant had filed documents in court that could have assisted court but the same were missing on the court file.
The Learned Magistrate erred in law and in fact by wrongly not giving itself a chance to evaluate the evidence f the appellant.
The Learned Magistrate erred in law and fact in failing to evaluate the duties of parties in the Agreement signed between parties.
The court had on the 11^th November 2024 granted the appellant 10 days within which to file their submissions and the respondents were equally to file and serve a defense within 10 days of service.
The matter came up before this court on the 5/12/2024 for confirmation of compliance with the directions issued on 11/11/2024 and the issuance of the judgment date.
This court noted that on 11/11/2024 all the parties were represented when the directions were issued by the Hon. Lady Justice R.E ABURILI.’
The appellants submissions were filed and they are dated 23^rd November 2024.
The appellants counsel appeared and informed the court that he was yet to be served with submissions by the respondents.
The respondents were absent despite the date having been taken by consent.
The court reserved the matter for Judgment on 23/4/2025 and directed the appellants to serve.

ANALYSIS AND DETERMINATION

As at the time of the writing of this judgment the court only had the advantage of reviewing and considering the submissions by the appellant.
The appellants main contention is that by the trial court erred in declining to review and set aside the proceedings of 11^th December 2018 closing the defense case and reopen the defense case with leave to file statements and documents in support of the defense case.
The appellant contends that the refusal by the court to grant their application, amounted to a denial of their right to be heard in the matter. Secondly, that the learned Honorable magistrate did not exercise his discretion to set aside the proceeding judiciously.
In addressing the twin issues this court has perused the Lower court Ruling dated 1/7/2020. It is the impugned ruling that the appellant wishes to have reversed.
From the outset two things need to be said about this matter. One is that the issue in dispute is the repayment of a loan that was granted to the respondent and the discharge of title number Kisumu/Konya/2354 which had been charged as security for the loan.
The judgment that was to be set aside by the learned Honorable magistrate was rendered way back on 18^th June 2019.
This is surely one of those old disputes that the court must deal with expeditiously and with finality.
The learned honorable magistrate observed in his ruling that all the parties had taken part in the proceedings thus they were both heard.
The appellant does not deny participation in the proceedings as well and all he says is that the closure of the defense was erroneous; a mistake they attribute to counsel for the appellant not the respondent.
The appellant was therefore heard save for the mistake of counsel for the appellant.

The appellant submissions read:-
“the matter came up for hearing and when it came up for defense hearing, the defense was closed due to the fact that the defendant’s counsel who had just taken over from previous counsel closed defense case on the mistaken belief that the defense had not filed any statements or documents in support of the defense case”

The submissions of the appellant read against the ruling of the learned Honorable magistrate raises some degree of concern in the mind of this court and that is whether the appellant had filed the documents they intended to rely on in their defense case prior to the closure of the case or the defendant were bent on having the documents filed long after judgment.
I say so because the ruling by the magistrate reads:-

“the defense hearing was fixed for 14^th November 2018. On that day the defense counsel sought more time to enable him obtain some documents. The court gave the defendant another date being 11^th December 2018. On 11^th December 2018 the defense counsel closed case and sought to file written submissions. This was done and the trial court which had gone on transfer ….. its judgement. The judgment was finally rendered on 18^th June 2019.

The High court is a court of record, the appellant has not contested that portion of the Ruling by the learned Honorable magistrate thus meaning the position is true as captured by the magistrate.
The appellant cannot therefore be heard to say that the defense case was prematurely closed nor argue that they were not heard.
It is thus difficult to accept the position advanced by the appellant that they had already filed the documents and that the same were simply missing from the court record.
If indeed they had filed the documents, then why was it necessary for the defense counsel to crave for time to go obtain some documents?
To my mind this a case of a poorly handled defense and the appellant is extending the blame to the court for no good reason.
The right to be heard is not a carte blanche for a litigant to clumsily handle his case and later turn his gun on the court. The court in this matter did not compel the defense to close its case. That was the deliberate choice of the counsel who appeared for the appellant in the lower court.
This court would have treated the issue differently had it been confronted with evidence to show that the documents were indeed filed and went missing from the court file. A letter from the Executive Officer or Court administrator to that effect would have been sufficient to persuade this court to arrive at a different finding.
The authority of Richard Ncharagi Leivagu Vs IEBC & 20 OTHERS 2013 eKLR cited by the appellant on the right to be heard is distinguishable. The court in this case did not dismiss the case. It heard the case on merit and defendant /appellant was given the opportunity to present its case but failed to do so. The reopening of a case is not an automatic right to a party.
A party seeking to reopen a matter must be able to demonstrate clearly that they were prevented by a justifiable cause from presenting the evidence they seek to introduce. The principles on review are explicit that a party should be able to demonstrate discovery of a new and important matter or evidence which after exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made.
On mistake the principle is that it must be a mistake or error apparent on the face of the record not a mistake by counsel.
In the case of Republic Vs Cabinet Secretary for Interior and Co-ordination of National Government Ex parte Abulahi Said Salad [2019] eKLR the Court cited National Bank of Kenya Ltdvs Ndungu Njau, {1996} KLR 469 (CAK) at Page 381 wherein it was held as follows:
“A review may be granted whenever the court considers that it is necessary to correct anapparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
The appeal by the appellant in the view of this court goes beyond the purview of what the magistrate dealt with in the impugned ruling. The interpretation of the contractual duties of the parties under a loan agreement was not a matter that was decided in the impugned ruling. The submission by the appellant on the same is with respect misplaced and should be reserved for appeal challenging the judgment of the court.
Finally, the ruling by the learned Honorable magistrate left a window to be exploited by the parties in that the warrants were recalled and the parties were advised to either agree on the result and decree or take accounts failing which parties could move the court to resolve the issue.

This court takes the view that, that option still remains the most pragmatic approach in resolving the dispute.

To insist on being heard when clearly the appellant had squandered his opportunity in defense would be an exercise in futility.
The upshot of the above is that the appeal is hereby dismissed for it has no merit.
The respondent shall have the costs of the appeal.
It is so ordered.