Ngoka v Wambari (Environment and Land Appeal 22 of 2022)  KEELC 241 (KLR) (25 January 2023) (Ruling)
Neutral citation:  KEELC 241 (KLR)
Republic of Kenya
Environment and Land Appeal 22 of 2022
EK Makori, J
January 25, 2023
Sharif Baya Ngoka
Athanase Mwamba Wambari
(Appeal against the Ruling of the Principal Magistrates Court at Mariakani (PMC. ELC E001 of 2020 by Hon. N.C Adalo delivered on 28th June 2022)
1.The Applicant in his Application dated 15th July 2022 prays for the following orders: -a.Spentb.That in the interim, pending hearing and determination of this Application inter parties this Honourable Court be pleased to issue an ex parte order of stay of execution of the judgment/or decree passed in Mariakani PMCC No. E01 of 2020.c.That pending hearing and determination of the appeal filed herein, this Honourable Court is pleased to issue an order of stay of execution of the judgment/or decree passed in Mariakani PMCC No. E01 oF 2020.d.That the Costs of this application be provided for.
2.The Respondent filed the Main suit at the Principal Magistrate’s Court at Mariakani on 7th September 2020. After service of Summons upon the Defendant, the firm of B.N Otieno and Company Advocates entered Appearance via a Memorandum of Appearance dated 25th September 2020. The matter later proceeded for Pre-trial on 13th June 2021 and was later heard on 28th September 2021 ex-parte and judgment was delivered on 12th November 2021.
3.An application was filed to have the ex parte judgment and orders set aside and the Appellant to be granted leave to defend. It was dismissed on 28th June 2022 provoking the current appeal.
4.The Memorandum of Appeal has raised the following grounds for consideration: -a.The trial court erred in finding that the filed defence was a mere general denialb.The trial court erred in finding that the defence was not meritorious.c.The trial court erred in finding that the Appellant was aware of the pendency of the case and failed to participate in the hearing.d.The trial court erred in the manner it appreciated the principles of setting aside ex parte judgment and determining applications brought under Order 12 of the Civil Procedure Rules.
5.The issues for determination in this application are whether the court should grant a stay pending appeal and the principles applicable in setting aside ex parte judgment under Order 12 Rule 7 and stay of execution under Order 42 Rule (6)(2) of the Civil Procedure Rules.
6.At the direction of the court, parties did file written submissions on the application.
7.On the 12th of November 2021, the trial court at Mariakani pronounced ex parte judgment in favour of the Respondent. This was after hearing the Respondent in the absence of the Appellant who allegedly had been served but failed to attend the hearing. The tenor of the judgment was that the Appellant fraudulently obtained money from the Respondent under the deception of selling him land. The trial court ordered a refund to the Respondent to the tune of Kshs. Eight hundred and eighty thousand (880,000/-), with interest at commercial rates of 18% p.a from the date of filing suit until payment in full.
8.The quarrel by the Appellant in the grounds of appeal, supporting affidavit, and submissions are that he never participated in the hearing but had entered an appearance and placed a defence on record. The Appellant had the service of Counsel representing him, but he failed to notify him of the hearing date.
9.The Appellant applied to set aside the ex parte judgment. By its ruling dated 28th June 2022, the trial court declined to set aside the ex parte judgment on grounds that the Appellant was well aware of all the mention and hearing dates but neglected to attend court and the judgment in place was therefore regular and ought not to be disturbed. In all the dates when the matter was due for hearing, there is a return of service to show service of the hearing and mention dates directed to the firm of Otieno B.N who was in the conduct of the matter for the Appellant.
10.The issue of service of hearing and mention notices on the Advocate for Appellant is not in contestation, but the Appellant says the Advocate never informed him and that the parties were negotiating for a settlement since the land in question was family property.
11.The trial court delved into the principles applicable under Order 10 Rule 11 Which is similar in procedure to Order 12 Rule 7 of the Civil Procedure Rules – which rules deals with ex parte default Judgments when no appearance or defence is filed, and judgment is obtained ex parte when appearance and defence are filed but the Defendant fails to appear to defend respectively. The court further considered the decisions in Patel Vs E. A Cargo Handling Services  EA 75 and Shah Vs Mbogo  EA 166. The court arrived at a finding that there was nothing to persuade it to set aside the ex parte judgment since the Appellant had been properly served with hearing notice.
12.The Appellant thinks that the trial Magistrate misdirected herself on this issue and that the Appellant ought not to be punished for mistakes committed by counsel.
13.I have weighed in on the submissions by counsels and the authorities as placed before me. On the issues at hand and the findings by the trial court.
14.On the principles governing the setting aside of ex parte judgments generally, is as stated in the case of Francis Gichuki vs Martin Leposo Tamoo Civil Appeal No. 530 of 2002  eKLR:-
15.The file in the Lower Court shows that there are three appearances on record when the matter was dealt with - one at the Registry on 22nd April 2021, when a date for pre-trial was issued, on 13th July 2021, when the matter was set down for pre-trials, and on 28th September 2021 when the matter proceeded to hearing. On all the occasions, the Appellant and Counsel were not in attendance and the matter proceeded ex parte. In the two occasions when the matter was before the trial court, there is evidence that Counsel for the Appellant had been served and therefore ostensibly the Appellant was served since he had Counsel on record.
16.Since there was proper service on record the hearing conducted on 28th September 2021 and the subsequent judgment on 12th of November 2021- was regular since there was proper service. It does not matter that it was the first time the suit had set down for a hearing. What was important was that there was a notice of the hearing on the appointed date and no cogent explanation had been given at all to the court to warrant adjournment. The court observed that in the past, albeit served – the Appellant failed to attend court.
17.Where there is a regular judgment in place, and an application is brought to have the same set-aside, the court proceeds in the manner as set in Elizabeth Kavere & another v Lilian Atho & another  eKLR: -
18.The trial court directed its mind to the defence, which had already been filed, and concluded that it was a sham and meant to delay the refund sought by the Respondent. The trial court did not consider giving conditional leave to defend.
19.Normally an Appellate court cannot disturb the exercise of discretion of a lower court unless the discretion was exercised injudiciously – see the case of Kenya Human Rights Commission & another v Attorney General & 6 others  eKLR: -
20.The trial court found that the defence in place was a sham based on the already filed pleadings and ex parte hearing it undertook. The land which the Appellant sold to the Respondent was unavailable. Either, a third party was already on the ground developing it or it was family land. That is the narrative we have from the evidence before the trial court. The only remedy that was available to the Respondent was a refund of the purchase price. It will seem that the Appellant sold land to the Respondent without good title. The trial court found the Appellant to have been fraudulent and was using the court to shield himself from a prompt and timely refund. That is why the trial court did not consider giving conditional leave to defend.
21.I do not fault the trial court in arriving at the conclusion it did, based on the material placed before it, particularly in this era when parties file their testimonies and documents to be relied upon during a hearing. However, from the thread of authorities from this court (see Elizabeth Kavere & another v Lilian Atho & another  eKLR) (supra), it is normally desirable to give a conditional leave to defend, even if to satisfy the desire of Art. 50(1) of the Constitution to a party who seeks to be heard even if no cogent or arguable defence seems visible as could appear in this case: -
22.The catch here will be that a party who genuinely wishes to be heard on merit (as in this case the Appellant) should ordinarily be ready to deposit the entire decretal amount or any other amount the court may think fit to impose for the due performance of a decree if an appeal does not succeed or if an ex parte judgment is set aside and the court finally decides for the Respondent. Alternatively, if the court finds in favour of the Appellant – the amount placed as security will revert to him. This is in accord with the fulfilment of Order 42 Rule (6) (2) of the Civil Procedure Rules. Both parties will not stagnate in the marshland and labyrinth of litigation when such an arrangement is in place. One party will not be stealing a match on the other. It achieves equality of arms.
23.Balancing the interests of both the Appellant and the Respondent - the Appellant’s right to be heard and that of the Respondent’s to enjoy the fruits of the judgment in place, I will partially allow the current Application for stay and or leave to defend and impose the following conditions:-i.The Appellant is hereby allowed to defend the suit at the Lower Court subject to depositing the entire decretal sum - that is Kshs 880,000/- with interest at court rates from the date of filing suit in an interest-earning account.ii.The amount be deposited in a reputable financial institution in the names of the Advocates appearing for the parties within 30 days hereof that is on or before 27th February 2023iii.The file is hereby remitted back to the PM Court Mariakani for a hearing on merit.iv.Failure, the Orders issued by the trial, judgment, and subsequent decree to revert for immediate implementation.v.Cost here and in the Lower Court, to abide by the outcome upon rehearing of the suit on merit.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 25TH DAY OF JANUARY 2023.E. K. MAKORIJUDGEIn the Presence of: -M/S Osman holding brief for M/S. Nyaboke for the AppellantIn the Absence of: -S.W Maina for the Respondent