1.Before court is the Respondent’s application dated 29th March, 2022, brought pursuant to Order 12 Rule 7 and Order 22 Rule 22 of the Civil Procedure Rules. The Respondent seeks orders THAT:i.Spentii.Spentiii.spentiv.The Court be pleased to set aside the exparte Judgment delivered herein on 24th February, 2022 and allow the claim to be heard on merit.v.Costs of the application abide the outcome.
2.The application is supported by the grounds and affidavit of Edward Aboki Begi, Counsel on record for the Respondent/Applicant. The basis of the application is that the matter herein proceeded to hearing on the 8th day of December, 2021, exparte without the participation of the Respondent.
3.The Respondent argues that although a hearing date was served upon its Counsel, it escaped the attention of the Advocate handling the matter and as such the matter proceeded exparte. He further avers that the Respondent has a defence to the claim and a Counter-Claim against the Claimant’s claim.
4.The Counsel further avers that in terms of Article 50(1) of the Constitution, the Respondent has a right to be heard, and which right has been compromised by mistake of Counsel.
5.The application is opposed vide the Claimant’s replying affidavit sworn on 10th May, 2022. The Claimant states that the application is brought in bad faith and is merely calculated to deny him the fruits of his judgment.
6.The Claimant further avers that the Applicant has not offered any reason or reasonable explanation as to why the Honourable Court should stay execution of the Judgment or set the Judgement aside.
7.The Claimant avers that on 8th day of November, 2021 he attended court for the hearing when the matter was called out and confirmed for hearing by the Judge at 11a.m. It is his case that on the same day at about 9.29a.m his advocate wrote a message to the deponent requesting him to log into ELRC Kisumu Court for the hearing, which he did not and the matter proceeded for hearing as scheduled.
8.The Claimant avers that his Advocate prepared, filed and served submissions upon the Respondent on 17th December, 2021. The Claimant states that judgment was delivered on 2nd February, 2022 and the Respondent informed about the judgment and only upon being served with the Claimant’s Bill of costs on 11th March, 2022, that the Respondent became interested in the matter.
9.The Claimant states that the Respondent is guilty of non-disclosure of material facts relevant to this application and prays that the application be dismissed.
10.Parties sought to canvass the application by way of written submissions. The Claimant filed submissions. The Respondent did not.
11.The Claimant’s submissions have been duly considered.
12.I have considered the motion, grounds, affidavits and the Claimant’s submissions.
13.It is not in doubt that the decision of whether or not to set aside an ex parte Judgment is discretionary. This discretion must however be exercised in the interest of justice and to avoid hardship and not to assist a person who has deliberately sought to obstruct or delay the course of justice. The Court of Appeal in CMC Holdings Ltd vs. Nzioki  KLR 173 stated:
14.The failure by the Applicant/Respondent to participate in this suit has been attributed to the mistake of counsel. The Counsel for the Respondent has through the affidavit in support of the application, admitted being served with the hearing notice, but which he states escaped his mind resulting in the case proceeding to hearing ex parte and the judgment sought to be set aside delivered.
15.Although the hearing date was taken in the absence of the Respondent and their Advocates, hearing notice was served and the notice has been acknowledged to have been received. The Claimant in his replying affidavit contend that his counsel served the Respondent with the submissions filed subsequent to the hearing and the decree therein.
16.The issue for determination is whether this level of mistake and/or inadvertence by Counsel is excusable so as to warrant both stay and the setting aside of the exparte judgment. The Court of Appeal in Murai vs. Wainaina (No. 4)  KLR 38 held that:
17.It has generally been held that a litigant should not suffer for mistake of Counsel. In Lee G. Muthoga -v- Habib Zurich Finance (K) Ltd & Another, Civil Application No. Nair 236 of 2009 the court held as follows:
18.In the case Mohamed & Another -v- Shoka (1990) KLR 463 the Court set out the factors that a court should consider in setting aside interlocutory judgment to include:i)Whether there is a regular judgment;ii)Whether there is a defence on merit;iii)Whether there is a reasonable explanation for any delay;iv)Whether there would be any prejudice.
19.The judgment herein, is a regular judgment in the sense that the Claimant proved service of the hearing notice through an affidavit of service filed before court. The court further allowed the Respondent two chances to defend their case and although orders were issued directing the Deputy Registrar to serve notice of the hearing on the Respondent, I have not come across the notice in the court record. Nonetheless, the Claimant proved having issued the notice therefore the prayer to set aside can only be granted in the discretion of the court. In Mwala -v- Kenya Bureau of Standards EA LR (2001) 1 EA 148, the court stated;
20.The court notes that the Respondent/Applicant had filed a response to the statement of claim and further put in a counter-claim. A glimpse at both the response to the Memorandum of Claim and the counter claim, indicate that the two raise triable issues. In Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd -v- Augustine Kubede (1982-1988) KAR, the Court held:
21.Considering that the Respondent had filed a defence and counter claim in this matter, and the fact that application herein arose out of the mistake of the Advocates representing the Respondent/Applicant, it would be in the interest of justice, that parties are heard fully on the merit.
22.Consequently, the court makes orders as follows:a)That the exparte Judgment delivered herein on 24th February, 2022, be and is hereby set aside and the claim allowed to be heard on merit.b)The Costs of the application shall be borne by the Respondent/Applicant.c)That the matter be fixed for directions on priority basis.