1.By Notice of Motion dated 18th November, 2021, and filed under Certificate of Urgency, the Applicants sought the following orders: -a.Spent.b.Spent.c.Spent.d.Spente.The Honourable court be pleased to vary, rescind and/or set aside the orders issued on the 8th day of November, 2021.f.Consequent to prayer No. 5 hereinabove being granted, the honourable court be pleased to reinstate and/or re-admit the Plaintiffs/ Applicants suit herein for hearing and disposal on merit.g.Cost of this Application do abide the cause.
2.The application is based on the 13 grounds thereof and the Supporting Affidavit of Marwa Ikanga Magige on 18.11.2021, on his own behalf and on behalf of the other Plaintiffs/ Applicants. It is his contention that the Defendant/ Respondent’s advocate and/or his representation fixed the suit for hearing in secrecy and failed to inform their advocate by issuing a hearing notice to that effect. Consequently, on the hearing date; 8th November, 2021, their advocate was not present in court neither did the Defendant’s advocate inform the court that he did not serve the Plaintiffs’ with the said hearing date. The suit was thus dismissed for want of prosecution.
3.It is the Applicants’ claim that they have been condemned unheard and their rights to fair hearing has violated/ infringed.
4.They further contend that there was no Affidavit of Service whatsoever filed in court by the Defendant/ Respondent and therefore the Defendant/ Respondent’s advocate proceeded to ask the court to dismiss the suit without any justifiable reason.
5.They are apprehensive that since the Defendant/ Respondent has extracted the decree, she is likely to proceed to execute the said decree at any time and as a result they are bound to suffer substantial loss and damage.
6.It is their contention that having demonstrated a sufficient cause to warrant the setting aside of the orders issued on the 08/11/2021, they urged the court to allow the Application ex-debito justiciae.
7.The application was opposed. The Respondent’s Advocate indicated to the court on 27.01.2022 that they had filed their Replying Affidavit; however, on a perusal of the court record, I have not seen any such Replying Affidavit. Be that as it may, I will proceed to analyze the evidence tendered by the Applicants in determining the Application.
8.This court issued directions that the Application be disposed of by way of written submissions on 24.11.2021. The Applicants’ counsel filed their submissions dated 16.05.2022, which I have taken into account in arriving at my decision. Respondent’s counsel on the other hand informed the court on 31.05.2022 that they would be relying on their pleadings as submissions.
B. Analysis and Determination
9.This court is of the considered opinion that the sole issue arising for determination is: -a.Whether the Applicants have made out a case for setting aside the proceedings and Orders made on 08.11.2021 and all the consequential order.
10.The grounds for setting aside an ex-parte judgment are now well settled. The court in determining whether or not to grant such orders ought to exercise such powers judiciously taking into account the circumstances of each case and the reasons advanced.
11.In Mbogo Vs Shah 1968 E.A 93 the court held that: -
12.As stated above, an order for setting aside is discretionary in nature and such discretion ought not to be exercised in favor of an undeserving party. The Applicants contends that the hearing dated of 08/11/2021 was fixed by the Respondent’s advocate and/or his representative, however, they failed to serve a Hearing Notice to that effect for purposes of informing the Plaintiffs/ Applicants of the said hearing date. Consequently, on the 08/11/2021, when the matter came up for hearing, neither the Applicants/ Plaintiffs nor their advocate attended court since they were not aware of the said date. They thus urged the court to allow the Application ex-debito justiciae.
14.This court has taken the liberty to peruse the court record to ascertain the averments by the Applicants that they were never served with the Hearing Notice notifying them of the hearing date of 8/11/2021. On 22/9/2021, when the matter came up for mention for directions, there was no representative for the Applicants/ Plaintiffs. This court issued the hearing dates of 8th & 9th November, 2021 and directed the Defendant’s Advocate to serve the Plaintiffs with a Hearing Notice to that effect.
15.On the scheduled hearing date of 8/11/2021, neither the Plaintiffs nor their Advocate on record was present in court. I have however noted that the Respondent’s advocate did not file any Return of Service to prove that they had indeed served the Applicants/ Plaintiffs with the Hearing Notice as directed. Therefore, in the absence of the Affidavit of Service, there is reason to believe the Applicants’ assertions that they were not aware of the said hearing date hence their failure to attend court as scheduled. Since there is no proof that they were served and notified of the hearing date, I find that there was no basis for dismissal of the suit for want of prosecution.
16.It is in the interest of justice that a party shall not be condemned unheard; Article 50 of the Constitution provides the right to have any dispute decided in a fair hearing before a court. Further, the requirements of Article 159 of the Constitution and the overriding objectives demands the courts to often strive to serve substantive justice.
17.In the upshot, I accordingly find that the Application dated 18th November, 2021 is merited and I proceed to allow the same on the following terms;a.The ex-parte proceedings on 8th November, 2021 and all the consequential Orders be and are hereby set aside and the Plaintiffs’ case is hereby reinstated for hearing.b.The Applicants/Plaintiffs herein are hereby directed to fix the matter for hearing on a priority basis.c.Costs of the Application in the Cause.