(Being an Appeal against the Ruling of the Hon. A.N. MAKAU (SRM) delivered on 25th October, 2022, in Nairobi Chief Magistrate's CMCC No. 8400 OF 2018)
JUDGMENT
Background and proceedings
1. The genesis of these proceedings emanates from a material damage claim filed by the plaintiff (hereinafter the respondent) dated 30th August,2018 wherein the Respondent sought a liquidated claim of Kshs.125,938/- together with interest as court rates and cost of the suit, which pleadings were served upon the defendants (hereinafter appellants’) in person who thereafter forwarded the same to their insurer.
2. The Appellants’ having failed to enter appearance in the suit, an interlocutory judgment was entered sometime on 1st February,2019 in the sum of Kshs 232,632.39/-, which Notice of entry of judgment was similarly served, this time upon the appellants, through the 1st appellant’s secretary.
3. However, the Appellants on the other hand maintain the position that there were completely oblivious of the suit until when the 1st Appellant received a copy of the Proclamation of Attachment and the Warrant of Sale of Property in Execution of the decree issued on 21st November, 2019, thereby rushed to the trial court to set-aside the default judgment through their initial counsels on record, which application was dismissed for want of service.
4. The instant counsels for the appellants, having received instructions filed a similar application dated 30th December, 2019, seeking similar orders of stay of execution and to set aside the interlocutory judgment, which was dismissed for want of attendance.
5. In the course of the proceedings, in execution of the ex-parte judgment the defendant, through his agents attached motor vehicle registration number KCE 036N, registered in the name of the 1st appellant. Thereafter, the trial court by application of the appellants, released the same, by virtue of it being a matatu utilized in business, but on condition that the entire decretal amount be deposited in court.
6. Consequently, another application was filed by the appellants’ dated 3rd March, 2020 seeking similar orders, which was, as the rest, dismissed by a ruling dated 25th October, 2022 as follows;
“As correctly averred by the plaintiff the applicant has squandered a number of opportunities given by the court to argue its case on this particular issue. I find no satisfactory reason has been advanced why there has been non-compliance with the court orders leading to dismissal of similar applications for want of prosecution and/or for lack of attendance. There has been laxity on the part of the defendant/applicant to have the issues before the court finalized.
Having stated the aforementioned I find that this application lacks merit and such I dismiss the same with costs to the plaintiff/respondent”
7. The appellant’s aggrieved by the Ruling instituted this appeal on grounds that;
I. THAT the Honourable Magistrate erred in law and in fact by failing to arrive to a finding that the 1st and 2nd appellant were not served with pleadings and summons to enter appearance yet satisfactory reasons were advanced on why there was non-compliance and non-attendance on the part of the appellants for failure of service.
II. THAT the Honourable Magistrate erred in law and in fact in failing to find that there were satisfactory reasons advanced on why there was no compliance on the part of the defendant/appellants, whereas the appellant made assertions, produced cogent evidence and made submissions to that effect.
III. THAT the Honourable Magistrate erred in law and fact in giving superficial or no consideration to the evidence tendered in favour of the appellant’s case, while giving undue and disproportionate weight and significance to the evidence tendered by the plaintiff.
IV. THAT the Honourable Magistrate erred in law and fact by solely relying on the respondent uncorroborated evidence “MR-1” affidavit of service in striking out the appellants’ application on the basis that it was properly served.
V. THAT the Honourable Magistrate erred in law and fact in striking out the appellant’s application on the basis that it lacks merit.
VI. THAT the Honourable Magistrate abused her discretion, acted whimsically and in bad faith in finding that there have been a laxity/redemption of opportunities on the part of the appellants to have the issues before court finalized while ignoring the fact that the appellant was not granted an opportunity to defend himself against the said proceedings.
VII. THAT the learned trial chief magistrate erred in fact and in law in taking into account irrelevant and omnibus issues at arriving at a wrong conclusion of dismissing unascertainable application.
Written submissions
8. By consent of parties the appeal was canvassed by way of written submissions. The parties filed their respective submissions dated 24th May, 2024 and 21st June, 2024 by the appellants and respondents, respectively. I have carefully analyzed and considered the submissions and case law authorities in support.
Analysis and Determination
• Whether the appellants have demonstrated how the trial court improperly exercised its discretion in dismissing the Application dated 3rd March 2020?
9. The appeal stems from the allegations that the Respondent failed to serve the appellants with summons and suit pleadings and they were thus unaware of the proceedings, the net effect being that they were denied an opportunity to present their case as regard the Respondent’s claim before judgment was entered.
10. The question of service in litigation is a critical issue and the court must satisfy itself that the opposite party has been informed of the existence of the suit leaving it up to said party to decide whether or not to enter appearance. If a party is not served then they stand the risk of being condemned unheard. This is why ‘personal service’ is the preferred mode of service. In the case of NATIONAL BANK OF KENYA – VS – PUNTLAND AGENCIES LIMITED & 2 OTHERS [2006] eKLR the Court of Appeal stated as follows: -
“The ideal form of service is personal. It is only when the defendant cannot be found that service on his agent empowered to accept service is acceptable.” (own emphasis)
11. Order 5 Rule 8(1 the Civil Procedure Rules provides as follows: -
“8. (1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.”
12. In the same breath, the manner of service of summons on a corporation is set out in Order 5 rule 3 of the Civil Procedure Rules which states as follows:
3. Subject to any other written law, where the suit is against a corporation the summons may be served;
a. on the secretary, director or other principal officer of the corporation; or
b. if the process server is unable to find any of the officers of the corporation mentioned in rule 3 (a)-
i. by leaving it at the registered office of the corporation;
...
13. Having thus said, courts have long settled that an affidavit of service, is a prima facie presumption of satisfactory service, unless otherwise proven. The Court in Agigreen Consulting Corp Ltd v National Irrigation Board (2020) eKLR, agreed with the finding in the case of Shadrack arap Baiywo vs. Bodi Bach KSM CA Civil Appeal No. 122 of 1986 [1987] eKLR, in which the Court of Appeal quoting Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 stated that:
“There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings”
14. The affidavit of service on record as sworn by one Bernard Nyagaka Obare, a licensed court process server depones that having received the summons and pleadings from the respondent’s counsels, the said Bernard on 26/9/2018 following a sketch map by the plaintiff documents, travelled to the appellant’s business premises in Eldoret, specifically along Makasembo Road, near Eldoret Hospital, which offices were clearly labelled as Pee Jay & Sons. He met two ladies in the offices; Lucy and Wairimu, to whom he introduced himself and purpose of his visit. The said Wairimu called Stephen Mburu (2nd appellant) via cell no. 0720828244, where she was instructed not to sign anything until his insurer, one Mr. Charles Karuru; of Esam Insurance Agency, perused the documents. That, on contacting the insurance agent, they agreed to meet the following day, at the same venue. On the following day, Mr. Karuru received the documents on behalf of the 1st and 2nd appellants and duly signed as proof of receipt on his primary summons.
15. The was no appearance nor proffering of any defence by the appellants within the statutory timelines, which prompted the entry of a default judgment and decree against them.
16. Thereafter, a Notice of Entry of Judgment was again served upon the appellants, similarly, through the authorized insurer, where in failing to settle the sum, warrants of attachment were issued. From hence a plethora of applications. From hence a plethora of applications followed from the appellants, which to the trial court’s dissatisfaction, despite its extension of an olive branch to the appellants to prosecute their applications, they squandered the leave granted, where time and again failed to do so, prompting its impugned Ruling, which is appealed herein.
17. I have extensively perused the trial courts proceedings. The first application by the appellants was dated 22nd February, 2019, by the firm M/S Tororei & Company advocates, therein acting for both appellants seeking stay of execution and setting aside of the ex parte judgment. Where the pleadings were executed by one J.N. Kang’ethe, the 1st appellant’s director and authorized by the 2nd appellant. The court considered the application ex parte and directed it be served for inter partes. On the said inter parte, counsel for the applicants/appellants stated that service was yet to be effected. The court noting the non-service, directed the same be served within 45 days failure to which the same would be dismissed. It would appear that the latter followed.
18. On came the 2nd application dated 30th December, 2019, by Otwal & Manwa Advocates, now solely for the 2nd appellant, of course seeking similar orders. The stay of execution of orders were granted in the interim pending inter partes. As would be, on the said inter partes, the appellants were a no-show, and the matter was dismissed for non-attendance.
19. Again, the 3rd application was instituted by the 2nd appellant, by the same firm dated 3rd February, 2020, seeking similar orders. In the same breath, the 1st appellant instituted an application dated 3rd March, 2020 by M/S Dennis Anyoka Moturi & Co. Advocates seeking similar orders as the 2nd appellant, coupled with the release of motor vehicle reg. KCE 036N, previously attached in execution of the impugned decree. Further, that the 1st appellant was simply the 2nd appellant’s financier, and the suit vehicle attached in execution of the default judgment was a matatu, meant for business. Peculiarly, the firm Otwal & Manwa Advocates, thereafter began acting for both appellants.
20. It is through these proceedings and circumstances that the trial court in its ratio decidendi noted that there were previous applications which were dismissed for non-attendance and non-prosecution, and no justification was satisfactorily meted out, for the non-compliance of the said orders/directions. Thereby, there was a laxity on the part of the appellants to finalize their issues.
21. First, on the issue of service, it is apparent that in as far as the 1st appellant is concerned, the summonses and pleadings were not properly served either on the secretary, director or an authorized officer. Further, it is not clear whether the same were dropped/left in their registered offices, if the officers were not traceable despite the deponed fact that the process server visited the 1st appellant’s business premises. As to the 2nd appellant, it is vivid that he was satisfactorily served and was duly appraised on the trial court’s proceedings. The nexus of events narrated by the Court process server gives a sequential chain of events; through identification, confirmation, service and receipt of the summonses and pleadings, through the 2nd appellants’ insurance representative; thereby an authorized agent directed to scrutinize and receive the pleadings. In fact, nowhere were the appellants desirous in cross-examining the court process-server, in establishing the veracity of his facts deponed in his affidavit of service.
22. However, of prime import, as reasoned by the trial court, is the casual nature of the appellants’ prosecution of their applications, which clearly cannot be gainsaid. Severally the appellants’ instituted applications to set aside the default judgment which by consequence of non-attendance were consequently dismissed.
23. Order 12 Rule 3 of the CPR 2010 is explicit on the consequences of non-attendance;
(1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.
The ripple effect of such a dismissal pursuant to rule 6 (2) is that;
(2) When a suit has been dismissed under rule 3 no fresh suit may be brought in respect of the same cause of action.
The above provisos, in my view, operate mutatis mutandis on not only the prosecution of suits but applications as well.
The correct procedural dictate as provided under Order 12 rule 7 is to make an application for the variation of the said orders by way of reinstatement, and not flood and choke the trial court with a plethora of similar applications. They are statutory barred.
24. Edney Adaka Ismail v Equity Bank Limited [2014] eKLR, citing Odunga J. in Lucy Bosire v Kehancha Div. Land Dispute tribunal & 2 others it was stated by the learned judge:
‘‘It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits. See Philip Keipto Chemwolo & Another -vs- Augustine Kubende [1986] KLR 492; [1982-88] 1 KAR 1036 at 1042; [1986-1989] EA 74.”
In the Edney Adaka Ismail case however, the learned judge remarked:
‘‘However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court....”
25. Kimaru J. in Savings and Loans Limited -vs- Susan Wanjiru Muritu Nairobi (Milimani) HCCS No.397 of 2002 where he expressed himself as follows: -
“In the present Case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff's determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant. (emphasis added)
26. I needlessly echo the sentiments of the learned judge hereinabove.
27. It is noteworthy, as mentioned hereinabove, that in the course of the proceedings, in execution of the ex-parte judgment the respondent, through his agents attached motor vehicle registration number KCE 036N, registered in the name of the 1st appellant. Thereafter, the trial court by application of the appellants, released the same, by virtue of it being a matatu utilized in business, but on condition that the entire decretal amount be deposited in court.
28. I have perused the trial court’s Ruling dated 13th April, 2023, where, as alluded by the respondents, the decretal sum deposited in court as security, was released to him and as a consequence, the trial suit is declared settled, any further proceedings at the trial court, are overtaken by events. In my view, this is not a sufficient ground to disallow the appeal, if the appellant was successful in establishing that the trial court misdirected itself in exercise of its jurisdiction, the respondent’s argument would be rendered inconsequential.
29. This notwithstanding, it has been held that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C. (31st Edition) at page 99:
“The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”
It is clear that the appellants inadvertence in the prosecution of their trial court applications, is now haunting them, and only have themselves to blame.
Conclusion
30. I find that the appeal lacks merit and is hereby dismissed.
31. Costs of the appeal assessed at Khs.30,000 all-inclusive and are awarded to the respondent.
Dated, Signed and Delivered at NAIROBI Virtually this ……31ST………Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE
JUDGMENT
Background and proceedings
1. The genesis of these proceedings emanates from a material damage claim filed by the plaintiff (hereinafter the respondent) dated 30th August,2018 wherein the Respondent sought a liquidated claim of Kshs.125,938/- together with interest as court rates and cost of the suit, which pleadings were served upon the defendants (hereinafter appellants’) in person who thereafter forwarded the same to their insurer.
2. The Appellants’ having failed to enter appearance in the suit, an interlocutory judgment was entered sometime on 1st February,2019 in the sum of Kshs 232,632.39/-, which Notice of entry of judgment was similarly served, this time upon the appellants, through the 1st appellant’s secretary.
3. However, the Appellants on the other hand maintain the position that there were completely oblivious of the suit until when the 1st Appellant received a copy of the Proclamation of Attachment and the Warrant of Sale of Property in Execution of the decree issued on 21st November, 2019, thereby rushed to the trial court to set-aside the default judgment through their initial counsels on record, which application was dismissed for want of service.
4. The instant counsels for the appellants, having received instructions filed a similar application dated 30th December, 2019, seeking similar orders of stay of execution and to set aside the interlocutory judgment, which was dismissed for want of attendance.
5. In the course of the proceedings, in execution of the ex-parte judgment the defendant, through his agents attached motor vehicle registration number KCE 036N, registered in the name of the 1st appellant. Thereafter, the trial court by application of the appellants, released the same, by virtue of it being a matatu utilized in business, but on condition that the entire decretal amount be deposited in court.
6. Consequently, another application was filed by the appellants’ dated 3rd March, 2020 seeking similar orders, which was, as the rest, dismissed by a ruling dated 25th October, 2022 as follows;
“As correctly averred by the plaintiff the applicant has squandered a number of opportunities given by the court to argue its case on this particular issue. I find no satisfactory reason has been advanced why there has been non-compliance with the court orders leading to dismissal of similar applications for want of prosecution and/or for lack of attendance. There has been laxity on the part of the defendant/applicant to have the issues before the court finalized.
Having stated the aforementioned I find that this application lacks merit and such I dismiss the same with costs to the plaintiff/respondent”
7. The appellant’s aggrieved by the Ruling instituted this appeal on grounds that;
I. THAT the Honourable Magistrate erred in law and in fact by failing to arrive to a finding that the 1st and 2nd appellant were not served with pleadings and summons to enter appearance yet satisfactory reasons were advanced on why there was non-compliance and non-attendance on the part of the appellants for failure of service.
II. THAT the Honourable Magistrate erred in law and in fact in failing to find that there were satisfactory reasons advanced on why there was no compliance on the part of the defendant/appellants, whereas the appellant made assertions, produced cogent evidence and made submissions to that effect.
III. THAT the Honourable Magistrate erred in law and fact in giving superficial or no consideration to the evidence tendered in favour of the appellant’s case, while giving undue and disproportionate weight and significance to the evidence tendered by the plaintiff.
IV. THAT the Honourable Magistrate erred in law and fact by solely relying on the respondent uncorroborated evidence “MR-1” affidavit of service in striking out the appellants’ application on the basis that it was properly served.
V. THAT the Honourable Magistrate erred in law and fact in striking out the appellant’s application on the basis that it lacks merit.
VI. THAT the Honourable Magistrate abused her discretion, acted whimsically and in bad faith in finding that there have been a laxity/redemption of opportunities on the part of the appellants to have the issues before court finalized while ignoring the fact that the appellant was not granted an opportunity to defend himself against the said proceedings.
VII. THAT the learned trial chief magistrate erred in fact and in law in taking into account irrelevant and omnibus issues at arriving at a wrong conclusion of dismissing unascertainable application.
Written submissions
8. By consent of parties the appeal was canvassed by way of written submissions. The parties filed their respective submissions dated 24th May, 2024 and 21st June, 2024 by the appellants and respondents, respectively. I have carefully analyzed and considered the submissions and case law authorities in support.
Analysis and Determination
• Whether the appellants have demonstrated how the trial court improperly exercised its discretion in dismissing the Application dated 3rd March 2020?
9. The appeal stems from the allegations that the Respondent failed to serve the appellants with summons and suit pleadings and they were thus unaware of the proceedings, the net effect being that they were denied an opportunity to present their case as regard the Respondent’s claim before judgment was entered.
10. The question of service in litigation is a critical issue and the court must satisfy itself that the opposite party has been informed of the existence of the suit leaving it up to said party to decide whether or not to enter appearance. If a party is not served then they stand the risk of being condemned unheard. This is why ‘personal service’ is the preferred mode of service. In the case of NATIONAL BANK OF KENYA – VS – PUNTLAND AGENCIES LIMITED & 2 OTHERS [2006] eKLR the Court of Appeal stated as follows: -
“The ideal form of service is personal. It is only when the defendant cannot be found that service on his agent empowered to accept service is acceptable.” (own emphasis)
11. Order 5 Rule 8(1 the Civil Procedure Rules provides as follows: -
“8. (1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.”
12. In the same breath, the manner of service of summons on a corporation is set out in Order 5 rule 3 of the Civil Procedure Rules which states as follows:
3. Subject to any other written law, where the suit is against a corporation the summons may be served;
a. on the secretary, director or other principal officer of the corporation; or
b. if the process server is unable to find any of the officers of the corporation mentioned in rule 3 (a)-
i. by leaving it at the registered office of the corporation;
...
13. Having thus said, courts have long settled that an affidavit of service, is a prima facie presumption of satisfactory service, unless otherwise proven. The Court in Agigreen Consulting Corp Ltd v National Irrigation Board (2020) eKLR, agreed with the finding in the case of Shadrack arap Baiywo vs. Bodi Bach KSM CA Civil Appeal No. 122 of 1986 [1987] eKLR, in which the Court of Appeal quoting Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 stated that:
“There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings”
14. The affidavit of service on record as sworn by one Bernard Nyagaka Obare, a licensed court process server depones that having received the summons and pleadings from the respondent’s counsels, the said Bernard on 26/9/2018 following a sketch map by the plaintiff documents, travelled to the appellant’s business premises in Eldoret, specifically along Makasembo Road, near Eldoret Hospital, which offices were clearly labelled as Pee Jay & Sons. He met two ladies in the offices; Lucy and Wairimu, to whom he introduced himself and purpose of his visit. The said Wairimu called Stephen Mburu (2nd appellant) via cell no. 0720828244, where she was instructed not to sign anything until his insurer, one Mr. Charles Karuru; of Esam Insurance Agency, perused the documents. That, on contacting the insurance agent, they agreed to meet the following day, at the same venue. On the following day, Mr. Karuru received the documents on behalf of the 1st and 2nd appellants and duly signed as proof of receipt on his primary summons.
15. The was no appearance nor proffering of any defence by the appellants within the statutory timelines, which prompted the entry of a default judgment and decree against them.
16. Thereafter, a Notice of Entry of Judgment was again served upon the appellants, similarly, through the authorized insurer, where in failing to settle the sum, warrants of attachment were issued. From hence a plethora of applications. From hence a plethora of applications followed from the appellants, which to the trial court’s dissatisfaction, despite its extension of an olive branch to the appellants to prosecute their applications, they squandered the leave granted, where time and again failed to do so, prompting its impugned Ruling, which is appealed herein.
17. I have extensively perused the trial courts proceedings. The first application by the appellants was dated 22nd February, 2019, by the firm M/S Tororei & Company advocates, therein acting for both appellants seeking stay of execution and setting aside of the ex parte judgment. Where the pleadings were executed by one J.N. Kang’ethe, the 1st appellant’s director and authorized by the 2nd appellant. The court considered the application ex parte and directed it be served for inter partes. On the said inter parte, counsel for the applicants/appellants stated that service was yet to be effected. The court noting the non-service, directed the same be served within 45 days failure to which the same would be dismissed. It would appear that the latter followed.
18. On came the 2nd application dated 30th December, 2019, by Otwal & Manwa Advocates, now solely for the 2nd appellant, of course seeking similar orders. The stay of execution of orders were granted in the interim pending inter partes. As would be, on the said inter partes, the appellants were a no-show, and the matter was dismissed for non-attendance.
19. Again, the 3rd application was instituted by the 2nd appellant, by the same firm dated 3rd February, 2020, seeking similar orders. In the same breath, the 1st appellant instituted an application dated 3rd March, 2020 by M/S Dennis Anyoka Moturi & Co. Advocates seeking similar orders as the 2nd appellant, coupled with the release of motor vehicle reg. KCE 036N, previously attached in execution of the impugned decree. Further, that the 1st appellant was simply the 2nd appellant’s financier, and the suit vehicle attached in execution of the default judgment was a matatu, meant for business. Peculiarly, the firm Otwal & Manwa Advocates, thereafter began acting for both appellants.
20. It is through these proceedings and circumstances that the trial court in its ratio decidendi noted that there were previous applications which were dismissed for non-attendance and non-prosecution, and no justification was satisfactorily meted out, for the non-compliance of the said orders/directions. Thereby, there was a laxity on the part of the appellants to finalize their issues.
21. First, on the issue of service, it is apparent that in as far as the 1st appellant is concerned, the summonses and pleadings were not properly served either on the secretary, director or an authorized officer. Further, it is not clear whether the same were dropped/left in their registered offices, if the officers were not traceable despite the deponed fact that the process server visited the 1st appellant’s business premises. As to the 2nd appellant, it is vivid that he was satisfactorily served and was duly appraised on the trial court’s proceedings. The nexus of events narrated by the Court process server gives a sequential chain of events; through identification, confirmation, service and receipt of the summonses and pleadings, through the 2nd appellants’ insurance representative; thereby an authorized agent directed to scrutinize and receive the pleadings. In fact, nowhere were the appellants desirous in cross-examining the court process-server, in establishing the veracity of his facts deponed in his affidavit of service.
22. However, of prime import, as reasoned by the trial court, is the casual nature of the appellants’ prosecution of their applications, which clearly cannot be gainsaid. Severally the appellants’ instituted applications to set aside the default judgment which by consequence of non-attendance were consequently dismissed.
23. Order 12 Rule 3 of the CPR 2010 is explicit on the consequences of non-attendance;
(1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.
The ripple effect of such a dismissal pursuant to rule 6 (2) is that;
(2) When a suit has been dismissed under rule 3 no fresh suit may be brought in respect of the same cause of action.
The above provisos, in my view, operate mutatis mutandis on not only the prosecution of suits but applications as well.
The correct procedural dictate as provided under Order 12 rule 7 is to make an application for the variation of the said orders by way of reinstatement, and not flood and choke the trial court with a plethora of similar applications. They are statutory barred.
24. Edney Adaka Ismail v Equity Bank Limited [2014] eKLR, citing Odunga J. in Lucy Bosire v Kehancha Div. Land Dispute tribunal & 2 others it was stated by the learned judge:
‘‘It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits. See Philip Keipto Chemwolo & Another -vs- Augustine Kubende [1986] KLR 492; [1982-88] 1 KAR 1036 at 1042; [1986-1989] EA 74.”
In the Edney Adaka Ismail case however, the learned judge remarked:
‘‘However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court....”
25. Kimaru J. in Savings and Loans Limited -vs- Susan Wanjiru Muritu Nairobi (Milimani) HCCS No.397 of 2002 where he expressed himself as follows: -
“In the present Case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff's determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant. (emphasis added)
26. I needlessly echo the sentiments of the learned judge hereinabove.
27. It is noteworthy, as mentioned hereinabove, that in the course of the proceedings, in execution of the ex-parte judgment the respondent, through his agents attached motor vehicle registration number KCE 036N, registered in the name of the 1st appellant. Thereafter, the trial court by application of the appellants, released the same, by virtue of it being a matatu utilized in business, but on condition that the entire decretal amount be deposited in court.
28. I have perused the trial court’s Ruling dated 13th April, 2023, where, as alluded by the respondents, the decretal sum deposited in court as security, was released to him and as a consequence, the trial suit is declared settled, any further proceedings at the trial court, are overtaken by events. In my view, this is not a sufficient ground to disallow the appeal, if the appellant was successful in establishing that the trial court misdirected itself in exercise of its jurisdiction, the respondent’s argument would be rendered inconsequential.
29. This notwithstanding, it has been held that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C. (31st Edition) at page 99:
“The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”
It is clear that the appellants inadvertence in the prosecution of their trial court applications, is now haunting them, and only have themselves to blame.
Conclusion
30. I find that the appeal lacks merit and is hereby dismissed.
31. Costs of the appeal assessed at Khs.30,000 all-inclusive and are awarded to the respondent.
Dated, Signed and Delivered at NAIROBI Virtually this ……31ST………Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE