1 The appellant and the respondent had entered into an agreement for sale of 85 acres of land to be excised from L.R NO. KAJIADO/METO/1308 for a consideration of ksh.11,050,000. The agreement is dated 24th September 2013. The appellant paid ksh.1,100,000 on 25th September 2013 and the balance was to be paid as follows; ksh.7,500,000 to be paid by transfer of two motor vehicles to the respondents to wit Nissan Terrano reg no. KAW 584U worth ksh.1,600,000 and Toyota Land Cruiser to be imported by the appellant worth ksh.5,900,000 and the balance of ksh 2,500,000 to be paid on or the completion date.
2 That due to circumstances beyond the plaintiffs control he was not able to import the Toyota Land Cruiser and therefore the agreement failed to materialize. The parties mutually agreed to rescind the agreement and refund the plaintiff ksh 1,100,000 and ksh 1,600,000 being the value for the vehicle handed over to the defendants. The defendant did not refund the plaintiff the monies as agreed hence the suit before the magistrate court.
3 The respondent/defendants jointly entered appearance and filed defence to the plaintiff claim through the firm of S. Ogeto Ongori Advocates on 17th April 2015. However, despite filing defence, the respondents failed and/or neglected to defend the claim and the suit proceeded without their participation. The court heard the appellant/plaintiff on 20th September 2018 and entered judgment against the respondent/defendant as prayed plus cost and interest.
4 The respondent while the execution process was ongoing, filed a Notice of Motion application under certificate of urgency seeking setting aside of the exparte judgement and consequential orders arising from the judgement delivered on 6th December 2018. The application was heard inter-parties and the honourable court R.A. Oganyo CM as she then was allowed the application and set aside the exparte judgement as sought by the respondent.
5 Aggrieved by the decision of the magistrate court to set aside the exparte judgement, the appellant preferred the present appeal on the grounds that the magistrate erred in law and in fact in allowing the respondent motion and setting aside the exparte judgement, and failed to appreciate that the six years delay in filing the said application was so inordinately high such that the appellant should have been allowed to enjoy the fruits of his judgement. The appellant faults the learned magistrate for failing to appreciate that the exercise of the court’s discretion is intended to avoid an injustice or hardship and not to obstruct or delay justice. Further, the learned magistrate is faulted for failing to appreciate that the only reason given by the respondent for failing to attend court was breakdown of communication with is previous advocate.
6 ANALYSIS AND DETERMINATION
7 The issue for determination is whether the learned magistrate properly exercised its discretion in setting aside the exparte judgement
8 Order 12 of the civil procedure rules provides for the hearing and consequences of non-attendance when a suit is fixed for hearing. Relevant to the present appeal is sub rule 2 which provides that; “if on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied that notice of hearing was duly served, it may proceed exparte.” From the courts record, the suit was set down for hearing twice, on 12th April 2018 and 20th September 2018, on both occasions the defendant and /or counsel were absent despite the fact that hearing notice was issued.
9 From 20th September 2018, when the court delivered exparte judgement, and in between when execution process was initiated and objections proceedings mounted, the respondent close to six years later, failed to move the court timeously and challenged the decision of the court.
10 While it is trite that the setting aside of judgment entered under Order 12 Rule 7 of the Civil Procedure Rules is a matter of courts discretion, that discretion has to be exercised judiciously, and in a manner that avoids injustice or occasioning hardship to any party.
11 In the case of Shah vs Mbogo (1979) EA 116 and cited with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR: the court stated that;
i. “......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”
12 The grounds proffered by the respondent before the trial court as a basis for setting aside the exparte judgement, are that he made several attempts through various channels to get information from his erstwhile advocate on the progress of the matters without success. Secondly, that the he honestly thought that the matter was no longer proceeding since their previous advocate on record never communicated to them on the progress of the case.
13 Firstly, there was no evidence placed before the court on the “channels” used by the respondent to get information from their advocate on record either by way of a letter or email correspondence inquiring about his matter. In any event the case belongs to disputing parties not their advocates and it behoves every one of them to actively participate and follow up on the status of disputes that brought them to court in the first place. Secondly, the assertion by the respondents that he honestly believed that the matter was no longer proceeding since their advocate never communicated to them is spurious to say the least. It’s illogical for a party to think that absence of communication from his/or her advocate mean that a matter had been concluded!
14 Evidence on record shows that the respondent participated during the execution process and became aware of the judgement in favour of the appellant but made no effort to challenge it. He was only jolted into action in my view when the appellant took steps to realize the fruits of his judgement.
15 In my view, the court misapprehended the nature of the application and the proceedings before her. The respondent had properly entered appearance and filed defence to the appellant claim and paid the requisite court fees way back in April 2015 complete with the 1st defendant witness statement filed on 29th April 2015. The trial court after hearing the appellant and his witnesses rendered an exparte judgment and not an interlocutory one as suggested by the learned magistrate. Indeed, the trial court considered the respondent defence and made reference to the fact that at the hearing only the appellant was present to prosecute his case.
16 The discretion to Set aside a judgement regularly entered in favour of the appellant in the instant case, in my view occasioned more injustice and hardship to the appellant than the respondent. His failure to present his side of the story during the hearing despite evidence of service was intended to delay, avoid and obstruct the cause of justice.
17 The court in the case of Safaricom Limited vs Ocean View Beach Hotel Limited &2 others Civil Application No 327 of 2009 stated as follows;
18 “Expressed differently the purpose of the “double o principle in its application to civil proceedings is to facilitate the just, quick and cheap resolution of real issues in the proceedings. Like oxygen, the principle has the potential to re- energise the civil system of justice and give the courts the freedom to attain justice in each case in a manner that is just, quick and cheap and above all in a manner which takes into account the special circumstances of each case or appeal the best way of handling it… It should be regarded as a double-edged sword in that it is a powerful enemy of those litigant bent on frustrating the course of justice because it has the potential of stopping them at the earliest opportunity and it will also be a powerful ally of those litigants who want to attain justice in a manner that is just, quick and cheap. The “O2” principle has not come to us as a packaged product for application to all situations. Instead, its application and management will depend on the circumstances of each case…”
19 In John Maina Mburu T/A John Maina Mburu & Co. Advocate vs George Gitau & 3 Others [2012] Eklr, the court observed that;
20 “What in effect the courts are saying is that the overriding objective should not be used selectively. It should be used for purposes of attaining justice either by not unduly delaying a party from realising what was truly and justly due to him or by ensuring that a party is accorded an opportunity to present his case on the merits where he has shown he has one. In other words, the plaintiff should not expect the court to ignore his failure to comply with procedural requirements in order to assist him obtain his orders summarily”
21 In the circumstances, I am satisfied that the learned magistrate erred in the exercise of discretion in favour of the respondent without sufficient cause and failed to see though the respondent attempts to delay and obstruct the enforcement of a judgement properly entered.
22 Consequently, the appeal succeeds. The Ruling of the learned magistrate R.A. OGANYO (CM) as she then was, dated 2nd July 2024 as against the appellant be and is hereby set aside. The Notice of Motion dated 18th December 2023 is dismissed with cost.
23 That the respondent to appear before the magistrate court in Kajiado on a date to fixed and show cause why he should not be committed to civil jail.
2 That due to circumstances beyond the plaintiffs control he was not able to import the Toyota Land Cruiser and therefore the agreement failed to materialize. The parties mutually agreed to rescind the agreement and refund the plaintiff ksh 1,100,000 and ksh 1,600,000 being the value for the vehicle handed over to the defendants. The defendant did not refund the plaintiff the monies as agreed hence the suit before the magistrate court.
3 The respondent/defendants jointly entered appearance and filed defence to the plaintiff claim through the firm of S. Ogeto Ongori Advocates on 17th April 2015. However, despite filing defence, the respondents failed and/or neglected to defend the claim and the suit proceeded without their participation. The court heard the appellant/plaintiff on 20th September 2018 and entered judgment against the respondent/defendant as prayed plus cost and interest.
4 The respondent while the execution process was ongoing, filed a Notice of Motion application under certificate of urgency seeking setting aside of the exparte judgement and consequential orders arising from the judgement delivered on 6th December 2018. The application was heard inter-parties and the honourable court R.A. Oganyo CM as she then was allowed the application and set aside the exparte judgement as sought by the respondent.
5 Aggrieved by the decision of the magistrate court to set aside the exparte judgement, the appellant preferred the present appeal on the grounds that the magistrate erred in law and in fact in allowing the respondent motion and setting aside the exparte judgement, and failed to appreciate that the six years delay in filing the said application was so inordinately high such that the appellant should have been allowed to enjoy the fruits of his judgement. The appellant faults the learned magistrate for failing to appreciate that the exercise of the court’s discretion is intended to avoid an injustice or hardship and not to obstruct or delay justice. Further, the learned magistrate is faulted for failing to appreciate that the only reason given by the respondent for failing to attend court was breakdown of communication with is previous advocate.
6 ANALYSIS AND DETERMINATION
7 The issue for determination is whether the learned magistrate properly exercised its discretion in setting aside the exparte judgement
8 Order 12 of the civil procedure rules provides for the hearing and consequences of non-attendance when a suit is fixed for hearing. Relevant to the present appeal is sub rule 2 which provides that; “if on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied that notice of hearing was duly served, it may proceed exparte.” From the courts record, the suit was set down for hearing twice, on 12th April 2018 and 20th September 2018, on both occasions the defendant and /or counsel were absent despite the fact that hearing notice was issued.
9 From 20th September 2018, when the court delivered exparte judgement, and in between when execution process was initiated and objections proceedings mounted, the respondent close to six years later, failed to move the court timeously and challenged the decision of the court.
10 While it is trite that the setting aside of judgment entered under Order 12 Rule 7 of the Civil Procedure Rules is a matter of courts discretion, that discretion has to be exercised judiciously, and in a manner that avoids injustice or occasioning hardship to any party.
11 In the case of Shah vs Mbogo (1979) EA 116 and cited with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR: the court stated that;
i. “......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”
12 The grounds proffered by the respondent before the trial court as a basis for setting aside the exparte judgement, are that he made several attempts through various channels to get information from his erstwhile advocate on the progress of the matters without success. Secondly, that the he honestly thought that the matter was no longer proceeding since their previous advocate on record never communicated to them on the progress of the case.
13 Firstly, there was no evidence placed before the court on the “channels” used by the respondent to get information from their advocate on record either by way of a letter or email correspondence inquiring about his matter. In any event the case belongs to disputing parties not their advocates and it behoves every one of them to actively participate and follow up on the status of disputes that brought them to court in the first place. Secondly, the assertion by the respondents that he honestly believed that the matter was no longer proceeding since their advocate never communicated to them is spurious to say the least. It’s illogical for a party to think that absence of communication from his/or her advocate mean that a matter had been concluded!
14 Evidence on record shows that the respondent participated during the execution process and became aware of the judgement in favour of the appellant but made no effort to challenge it. He was only jolted into action in my view when the appellant took steps to realize the fruits of his judgement.
15 In my view, the court misapprehended the nature of the application and the proceedings before her. The respondent had properly entered appearance and filed defence to the appellant claim and paid the requisite court fees way back in April 2015 complete with the 1st defendant witness statement filed on 29th April 2015. The trial court after hearing the appellant and his witnesses rendered an exparte judgment and not an interlocutory one as suggested by the learned magistrate. Indeed, the trial court considered the respondent defence and made reference to the fact that at the hearing only the appellant was present to prosecute his case.
16 The discretion to Set aside a judgement regularly entered in favour of the appellant in the instant case, in my view occasioned more injustice and hardship to the appellant than the respondent. His failure to present his side of the story during the hearing despite evidence of service was intended to delay, avoid and obstruct the cause of justice.
17 The court in the case of Safaricom Limited vs Ocean View Beach Hotel Limited &2 others Civil Application No 327 of 2009 stated as follows;
18 “Expressed differently the purpose of the “double o principle in its application to civil proceedings is to facilitate the just, quick and cheap resolution of real issues in the proceedings. Like oxygen, the principle has the potential to re- energise the civil system of justice and give the courts the freedom to attain justice in each case in a manner that is just, quick and cheap and above all in a manner which takes into account the special circumstances of each case or appeal the best way of handling it… It should be regarded as a double-edged sword in that it is a powerful enemy of those litigant bent on frustrating the course of justice because it has the potential of stopping them at the earliest opportunity and it will also be a powerful ally of those litigants who want to attain justice in a manner that is just, quick and cheap. The “O2” principle has not come to us as a packaged product for application to all situations. Instead, its application and management will depend on the circumstances of each case…”
19 In John Maina Mburu T/A John Maina Mburu & Co. Advocate vs George Gitau & 3 Others [2012] Eklr, the court observed that;
20 “What in effect the courts are saying is that the overriding objective should not be used selectively. It should be used for purposes of attaining justice either by not unduly delaying a party from realising what was truly and justly due to him or by ensuring that a party is accorded an opportunity to present his case on the merits where he has shown he has one. In other words, the plaintiff should not expect the court to ignore his failure to comply with procedural requirements in order to assist him obtain his orders summarily”
21 In the circumstances, I am satisfied that the learned magistrate erred in the exercise of discretion in favour of the respondent without sufficient cause and failed to see though the respondent attempts to delay and obstruct the enforcement of a judgement properly entered.
22 Consequently, the appeal succeeds. The Ruling of the learned magistrate R.A. OGANYO (CM) as she then was, dated 2nd July 2024 as against the appellant be and is hereby set aside. The Notice of Motion dated 18th December 2023 is dismissed with cost.
23 That the respondent to appear before the magistrate court in Kajiado on a date to fixed and show cause why he should not be committed to civil jail.