1.This ruling is in respect of a Notice of Motion dated May 12, 2021 by the Defendant/Applicants seeking the following orders: -
2.Counsel agreed to canvas the application vide written submissions which were duly filed.
3.In response to the application, the Respondent swore and filed a Replying Affidavit on March 18, 2022 claiming reluctance on the part of the Applicants to effect service of the application therefore should not benefit from the available remedies. The application was canvassed by way of written submissions as follows: -
4.It was the Applicant’s case that on September 28, 2018, judgment was delivered in this Court and a decree signed on February 22, 2019 in favour of the Plaintiff herein. That subsequently, warrants to give vacant possession were issued on November 23, 2020. According to the Applicants, their former advocates never informed them of the hearing date and that they only became aware of the judgment when they were served with a letter dated April 14, 2021.
5.The Applicants stated that this prompted them to file the present application seeking orders inter alia that the ex parte proceedings and judgment be set aside and the suit be set down for hearing on merits.
6.Counsel for the Applicants submitted that the application for execution having been made a period more than one year from the date of the decree, notice to show cause ought to have been issued first in accordance with Order 22 rule 18 of the Civil Procedure Rules.
7.Counsel argued that the mistake of an advocate, in this case the Defendants’ former advocate, should not be visited upon a litigant and that allowing the application will not prejudice the Respondent in any manner.
8.Counsel further submitted that the Defendants have a good defence with overwhelming chances of success and that the Defendants have disclosed how they came to know about judgment herein. Further that they have acted without undue delay upon discovery of the entry of judgment.
9.Counsel for the Respondent submitted that the Applicants failed to establish sufficient cause for the orders of stay to be granted as envisaged under Order 42 Rule 6 of the Civil Procedure Rules.
10.Counsel added that there has been unreasonable delay in filing the application and it is in the interest of justice that the Respondent be allowed to enjoy the fruits of judgment.
Analysis And Determination
12.The issue for determination is whether the Applicant has met the threshold for setting aside judgment and whether the court can grant an order of stay of execution.
14.In the present case, the impugned judgment being a regular exparte judgment, it is important therefore to consider whether the conditions for setting aside such a judgment have been met.
15.The hearing date, December 7, 2017, was taken at the registry by the Respondent’s then advocates George Wakahiu & Njenga Advocates. On the hearing date, counsel told the court that he served the hearing notice to the Defendants’ advocate as per the affidavit of service. The court being satisfied with the service, proceeded to hear the Plaintiff’s case. Indeed, service of the hearing notice was not disputed. The Defendants’ contention was that their former advocates did not inform them of the hearing date.
16.The Applicants have instructed a new advocate in place of their previous advocate whom they claim not to have informed them of a hearing date. Advocates do not own the cases of the parties that instruct them. They do it on behalf of the litigants, therefore parties should be vigilant and follow up their cases once they instruct their advocates. It is not enough to pack a case at the advocates’ office and wait for miracles to happen.
17.A party must be part and parcel of the case that they have either sued or been sued. It is not enough to blame the advocate for not informing you of the hearing date. If it was a genuine mistake the previous counsel should have filed an affidavit stating the same or file the current application for setting aside judgment and explaining what transpired.
19.Further, the present application was filed over two years after judgment was delivered and a decree issued. This delay is neither been explained at all nor satisfactorily explained hence it amounts to inordinate.
22.I have considered the application, the submissions by counsel and find that the application lacks merit and is therefore dismissed with costs to the Respondent.