a.Whether the Defendants gave reasonable ground(s) set aside the judgment of 03/02/2022
23.As a preliminary point, it is worth noting that the instant Application was brought under Order 10 Rule 11 of the Civil Procedure Rules which provides for setting aside a judgment entered in default of appearance or defence as opposed to Order 12 Rule 7. Order 12 Rule 7 which provides for the setting aside of a judgment entered on account of non-attendance of a party as is the case herein.
24.I am alive to the position taken by Courts that, in the interest of substantive justice, wrong cited notwithstanding the Court has a duty to consider an application within and as though filed under the correct provision(s) of the law. This is based on the objective interpretative of the substantive justice principle as embedded in Article 159 (2) (d) of the Constitution, 2010. The Sub-Article provides-
25.But that provision should not be used to rubbish and disdain the correct position of the law that applications should be brought under the correct provisions. To depart from that would be an indirect way of breeding a society and profession that does not follow the law, it is careless and lazy. As was correctly put by, and I fully agree with, the Court of Appeal in Kakuta Maimai Hamisi Vs. Peris Pesi Tobiko & 2 Others  eKLR, when it held that;
26.Additionally, in Mumo Matemu Vs. Trusted Society Of Human Rights Alliance & 5 Others Civil Appeal No. 290 of 2012, a five judge Bench of the same Court held that,
27.I have called to light and guidance the two authorities above for the reason that the Applicants relied on irrelevant provisions in bringing the instant Application. They based it on Sections 3A of the Environment and Land Court Act, a provision which, with all due respect does not exist in law hence abhorrently pulled as a fast one to the Court, and Order 10 Rule 11 of the Civil Procedure Rules which reads as follows, “Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
28.The latter provision calls on the Court to examine the import of the entire Order (10) of the Civil Procedure Rules in order for one to think and look back to understand the basis of moving the Court under it. The Order is on “Consequence of Non-Appearance, Default of Defence and Failure to Serve”. In essence the provision is invoked only where the Applicant did not enter appearance and file a defence, and the matter proceeds ex parte to the judgment stage or he/she entered appearance but fails to file a Defence and the matter proceeds in his/her absence to judgment.
29.In the instant case, the two Defendants appointed learned counsel who came on record for them. He not only filed Defence on their behalf as instructed but also participated in the hearing of the case at one time when he cross-examined PW1. The hearing that the Applicants complains of having taken place on 15/11/2021 was one where they did not attend for further hearing of the matter and prosecution of their defence. That does not fall within the purview of Order 10. Instead, it should be under Order 12 of the Civil Procedure Rules, particularly, Rule 3 thereof which then resulted in a judgment which the Applicants should have applied to set aside under Rule 7.
30.Having said the above, I will treat the citing of the wring provisions as an infraction which, for the sake of the interest of justice, I have to excuse, but certainly not on the basis of continued and future infractions. To this end I therefore proceed to consider the application under Order 12 Rule 7 of the Civil Procedure Rules.
31.It is clear from the record that the Defendants filed their amended Defence, and other accompanying pleadings, and participated through her former Counsel - Ms Kidiavai & Company Advocates in the hearing of the Plaintiff’s case on 7/3/2018 wherein they even cross-examined PW1. Further hearing took place on 15/11/2021 when the Plaintiff’s case was closed upon the testimony of PW2 being taken. The Defendants testimony was not taken due to their failure to attend court on the material date, though her learned counsel was duly served. The Court prepared judgement and delivered it on the 03/02/2022.
32.As such, the Defendants seek to set aside the said judgement, so as to allow them to present their evidence. The Defendants blame the predicament they find themselves in on the lack of service of the notice of hearing and turn to the fact of learned Counsel failing to notify them of the hearing date.
33.If the Applicant’s allegations are true to the extent they state, then Order 12 of the Civil Procedure Rules addresses this scenario. In particular, Order 12 Rule 2 (a), provides that;
34.The above provision is the one applicable herein because they did not attend Court, the matter was called out and neither did their representative attend the hearing. Then in a bit to remedy the situation that may be deemed aggrieving to the Defendant who fails to attend Court and Order 12 Rule 7 of the Civil Procedure Rules kicks in to provide as follows:
35.As is clear from the provision, there are no specific reasons that ought to be given by a party who moves the Court to intervene in such a situation so as to be availed of the prayer of setting aside. It is left to the discretion of the Court and that is why the term “may” which is permissive has been used in the provision. All that the Court has to do is, in balancing the interests of justice, to impose such terms as are just in the circumstances of the case. Thus, each case has to be treated on its own merits. But as the law, the discretion though wide has to be exercised judiciously.
36.Again, the purpose of the discretion is to further the ends of justice. In John Mukuha Mburu v Charles Mwenga Mburu (2019) eKLR wherein the case of Shah vs Mbogo (1979) EA 116 was cited, it held that the discretion is very wide. The Court also stated thus:
37.Thus, in Patel v E.A. Cargo Handling Services Limited (1974) E.A. 75, cited with approval in the case of Stephen Wanyee Roki vs K-Rep Bank Limited & 2 Others (2018) eKLR the Court held as follows:
38.In the case of Esther Wamaitha Njihia & 2 Others vs. Safaricom Limited  eKLR, the learned Judge, citing the case of Stephen Ndichu vs. Monty’s Wines and Spirits Ltd  eKLR, held as follows:
39.Consequently, the question this Honourable Court is supposed to answer as it determines the instant Application is whether the Defendants have given justifiable grounds to warrant the exercise of its discretion in their favour.
40.In this instant case, whereas the Applicants gave at first a wrong impression that the suit was heard ex parte, the record shows, as was summarized above, that the Defendants filed a Defence and later amended it and the suit was part-heard as at the date when the Defendants did not attend Court. At first, they claimed that they were not represented by any advocates. But the Court record bears that the firm of Ms. Kidiavai & Company Advocates represented them all through until after judgment. The said law firm took over the instructions on behalf of the 1st Defendant from Ms. Okile & Company Advocates who had taken over the matter on his behalf from Ms. Simiyu Wafula & Company Advocates on 03/06/2015 and filed his Defence on 12/04/2016.
41.On 29/06/2017 through the law firm of Ms. Kidiavai & Company the 2nd Defendant applied to be enjoined as such. On 17/07/2019 the application was allowed by consent of the parties thereby enjoining the 2nd Defendant, and on 21/07/2017 the Plaintiff amended his Plaint in accordance with the orders of the Court. On 18/09/2017 the 1st Defendant instructed Ms. Kidiavai & Co. Advocates to take over the defence from Ms. Okile & Co. Advocates. They filed a Notice of Change of Advocates and an Amended Defence the same date and from then on, they represented the Defendants up to after judgment when the current Advocates took over the conduct of the Defence from them. In terms of Order 9 Rule 1 Civil Procedure Rules, the Defendants having appointed the said law firm to act for them they cannot claim otherwise as long as the said Advocates were on record.
42.The record further bears that the hearing notice was served upon the Defendants’ Advocates. They protested that they did not have instructions. They did not attend Court after that. The Defendant’s argued that the Advocates’ failure to attend Court on their behalf made them disadvantaged in terms of them not being given an opportunity to present a good defence. Further, they argued that the said Advocates did not serve them with a hearing notice hence their failure to attend Court was a mistake of Advocates and not their own hence they should not be punished for the lawyer’s mistakes.
43.The record shows that after the judgment was duly entered, the Plaintiff’s Advocate drew a party and party Bill of Costs. It was filed and fixed for taxation on 10/05/2022 when it was adjourned to 17/05/2022. On that date it was argued in the presence of both learned counsel for the parties and fixed for ruling on 31/05/2022. Further, it was sworn by the Respondent that after the taxation of the party and party costs, he commenced execution. Ms. Igare Auctioneers proclaimed the goods of the Defendants.
44.In a bid to forestall the execution, the 2nd Defendant’s son, one Kiprono Kittony paid the sum of Kshs. 100,300/= as a settlement of the taxed costs. This was evidenced by the Mpesa Statement of the Auctioneer which was annexed to the Supplementary Affidavit of Emmanuel Satia sworn on 9/06/2023. This was not refuted by the Applicants.
45.Two points come out strongly from the contention by the Applicants and their conduct after the judgment was entered into. These are that their participation in the taxation process shows clearly that they were aware of the judgment and accepted its terms. They cannot now turn to challenge it even after partly complying with the decree. Secondly, there was no evidence at all by way of an Affidavit by the previous Advocates on record that indeed they did not inform the Applicants of their hearing notice or that they failed in their professional duty to update the clients about the hearing date. Such serious allegation ought to have been backed by an Affidavit by learned counsel. Gone are and should be the days when clients pitched tent, without backing it with evidence, in the argument that their learned counsel failed to carry out their duty. If indeed learned counsel fails to perform his duty it is not a mistake that should be used to the prejudice of the innocent party.
46.In regard to failure to attend Court as a reason for setting aside a judgment, Wachira Karani v Bildad Wachira  eKLR the Court defined sufficient cause therein as follows: -
47.In instant case, there is no reasonable explanation given by the Defendants as to why they failed to attend court to defend the suit. They cannot feign ignorance of the fact that the suit was for hearing on the material date.
48.The Applicants, in the Supplementary Affidavit sworn by the 2nd Defendant on 2/06/2023, deponed and contended that the 1st Defendant was not served with the hearing notice as he was very ill from the year 2021 to June, 2022 when he was in coma. She annexed and marked as HZK-2A, 2B, 2C and 2D copies of medical records of the alleged illness. I analyzed with anxiety the said documents since they intended to bring out an important point about the reason for failure to communicate with learned counsel. First, document HZK-2A was a copy of full hemogram Report on John Kemboi. It was issued by Cherangany Hospital on 07/06/2022 at 9:15 AM. Second, annexture HZK-2B were copies of receipts purported to be issued 07/06/2022 (three of them bore this date) and 09/06/2022 (two of them bore this date). Third, annexture HZK-2C is CT Scan Receipt issued by the Perazim Diagnostic Centre on 06/06/2022. Fourth, annexture HZK-2D is a copy of an Ultra Sound Report issued by the said Diagnostic Centre on 06/06/2022.
49.As is clear from the documents above, all the dates they related to were between 06/06/2022 and 09/06/2022. With all due respect there is no medical evidence to show that the said John Kemboi was ill from the year 2021 and how that illness could have prevented him from following up his case with the lawyers. Even so, the deponent did not give a reason for her failure to follow up the case with the advocates, if indeed the 1st Defendant was bed-ridden during the time. I find that the records are a mere device aimed at confusing the Court about the communication required of both counsel and clients.
50.In any event they have not demonstrated to this Court that they were diligent in following up their matter with their Advocates before the material date, if at all they could be heard to say that their lawyers failed them. Had they been diligent they ought to have known the times and requirements when the matter was in Court. In Bi-Mach Engineers Ltd vs James Kahoro Mwangi (2011) eKLR, the Court stated a client’s duties vis-a vis his learned Counsel, and I am prepared to and I agree with the decision. It stated that:
51.Moreover, the Applicants moved the Court to set aside the judgment and therefore the entire proceedings whereas they were aggrieved with the decision of the Court to proceed on 15/11/2021. It is the humble view of this Court that for the Applicants to use the proceedings of the said date to set aside the entire proceedings of the case including wherein their ably and actively participated is malicious, mischievous and an abuse of the process of the Court and this Court cannot be hoodwinked into doing that.
52.The upshot of the foregoing is that the Court finds that the Notice of Motion dated 03/05/2023 is not merited.