1.Before this Court for determination is the Amended Notice of Motion dated October 29, 2021by which BBG (the Applicant) seeks the following orders:-
2.The application was premised upon order 12 Rule 7, Order 9 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act Cap 24 Laws of Kenya and all enabling provisions of law and was supported by the Affidavit of even date and the Further Affidavit dated November 30, 2021 sworn by the Applicant.
3.The Petitioner/Respondent BDG opposed the application through his Replying Affidavit dated November 8, 2021. The application was canvased by way of written submissions. The Applicant filed the written submissions dated 30th November 2021 whilst the Respondent relied upon his written submissions dated 20th December 2021.
4.The Petitioner herein had on October 28, 2021filed before the court a Petition dated October 27, 2014seeking the following –
5.The Respondent in the Divorce Petition (who is the Applicant herein) filed a Reply to the Petition and a Cross-Petition dated July 4, 2017in which she prayed that the Petition for Divorce be struck out and also prayed to be awarded maintenance Alimony.
6.The Petition came up for hearing in the High Court on 1st July 2021. On that date, neither the Respondent nor her Advocate were in court. The court having noted that the hearing date was taken by consent proceeded to hear the case notwithstanding the fact that the Respondent was absent.
7.On 30th July 2021 this court delivered its judgment in which the Petition was allowed and the marriage between the parties was dissolved.
8.The Respondent then filed this present application seeking to have the judgment of 30th July 2021 set aside and the Petition to be heard afresh.
9.The Applicant averred that on the date set for hearing of the petition her Advocate was away on maternity leave. That the Applicant herself had not been informed by the Advocate who took over the matter of the hearing date hence her non-attendance in court on that date.
10.The Applicant further avers that she is a foreigner who depended solely on Petitioner thus she will be greatly prejudiced if her Cross-Petition is not reinstated. That neither the Applicant nor her counsel were notified of the date for judgment and she only became aware that her cross-petition had been dismissed when her Advocate returned from maternity leave and perused the file. The Applicant urges that the present application has been brought without undue delay and prays that the same be allowed.
11.The Petitioner/Respondent opposed the application to have the matter reinstated. He submitted that the hearing date had been taken by consent and that failure of the Applicant and her Advocate to attend court for hearing was deliberate. That the Applicant was herself an indolent litigant and is now trying to push the blame for her non-attendance to her Advocate.
12.The Petitioner/Respondent averred that the judgment entered was regular, that the Applicant has not met the threshold required to set aside a regular judgment and urged the court to dismiss the application.
Analysis and Determination
13.I have carefully considered the application before this court, the Affidavit filed in Reply as well as the written submissions filed by both parties.
15.The discretion granted to a court to set aside a judgment must however be exercised in a limited and judicious manner. In the case of EWN & 2others vs Safaricom Limited eKLR the Court held as follows:-
17.The test for whether to allow an application to set aside a judgment is three fold-(i)whether a reasonable explanation has been advanced(ii)whether there is a defence on merits(iii)what prejudice if any will be suffered by the other party.
18.The Applicant states that her failure to appear on the hearing date was occasioned by the fact that her Advocate was away on maternity leave and that the lawyer who took over the matter failed to informed the Applicant of the hearing date. The Applicant has annexed to her supporting Affidavit copies of a series of text messages exchanged between herself and her Advocate (Annexture ‘BBG01’). It is clear from these that the Advocate on was record was on maternity leave.
19.Be that as it may it is trite that a suit belongs to the litigant. The Applicant cannot instruct counsel and then just sit back and wait to be informed of the progress of her case. As the ‘owner’ so to speak of the suit, the Applicant had an obligation to monitor the progress of her case. Had she done so I am sure the Applicant would have been fully aware of the allocated hearing date. In Savings & Loan Limited – vs Susan Wanjiru Muritu, Milimani HCCC No. 397 of 2002, Hon Justice Luka Kimaru stated as follows:-
20.The Applicant herein clearly did not bother to monitor the progress of her case. Had she done so she would have been fully aware of the hearing date and would have attended court on that date.
21.The Applicant submitted that she has a valid cross-petition which she is desirous of prosecuting. I have perused the said Cross-Petition. I am satisfied that it raises triable issues which the applicant ought to be granted an opportunity to ventilate.
22.The Petitioner/Respondent submits that given that judgment in this case has already been given the setting aside of said judgment will prejudice him. This court has to weigh the right of the applicant to be heard against any inconvenience the Petitioner/Respondent may suffer. This is a Divorce Petition and the outcome of the case affects the personal status of the parties. For this reason and despite my finding that the applicant was an indolent litigant, I am of the view that she nevertheless deserves the opportunity to prosecute her cross-Petition. Any inconvenience the Petitioner may suffer can be mitigated through an award of costs.
23.I therefore allow this application. The judgment delivered on July 30, 2021is hereby set aside. The Petition to be heard afresh and since this is a Divorce Cause the matter is hereby transferred to the Milimani Chief Magistrates Court for hearing and determination. Costs for this application will be met by the Applicant.