1.In a ruling delivered in Voi CMCC No. 313 of 2018 on 28th April 2022, the learned Chief Magistrate dismissed an application dated 1st July 2021 filed by the appellant (who was the defendant in the trial court), and refused to exercise the trial court’s discretion to review the court’s orders made thus declining to re-open the case as requested.
2.Dissatisfied with ruling of the trial Magistrate, the appellant Safina Transporters Ltd has come to this court on appeal through counsel Muma Nyagaka & Company Advocates on the following grounds:-1.The learned Magistrate erred in law and in fact in failing to appreciate that the appellant’s failure to attend court during the hearing was not a fault of his own making but was caused by the failure of the former advocate to inform the appellant of the hearing date.2.The learned Magistrate erred in law and fact by failing to apply the correct principles of law in her ruling regarding the setting aside of exparte judgment and her decision has denied the appellant an opportunity to exercise his constitutional right to be heard.3.That in exercising her discretion in setting aside the exparte judgment, the learned Magistrate took into consideration matters which were extraneous thus clouding her mind with matters that ought not to have been taken into consideration, hence arriving at a wrong decision.4.The learned Magistrate erred in law and fact by failing to appreciate that denying a party a right to be heard is a harsh result and any delay occasioned by the appellant’s application was curable by an award of costs.5.The learned Magistrate erred in law and fact by failing to appreciate that the appellant had demonstrated sufficient cause to warrant the setting aside of the exparte judgment.6.In arriving at her decision, the learned trial Magistrate did so in a speculative manner not guided by the law, the applicable principles of setting aside exparte judgment that have crystallized into law and her failure to adhere to the foregoing has occasioned a serious miscarriage of justice and ought to be reversed and set aside.
3.The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Muma Nyagaka & Company Advocate for the appellant and Were Oonge & Company Advocates for the respondent. Both sides relied upon decided court cases.
4.Having perused and considered the trial court record, I note that each of the parties were represented by advocates at the trial.
5.The record of the trial court also shows that on 10th August 2020 the then counsel for the appellant Mogaka Omwenga & Mabeya did not attend court and the hearing proceeded without them, and orders were issued by the trial court for final submissions to be filed. On 14th September 2020 the trial court noted that the affidavit of service on the appellant’s advocates had alterations which were not counter signed and declined the allegation that adequate service had been made.
6.On 28th September 2020 a judgment date was fixed for 12th October 2020 and, on that date, the court was informed by Mr. Ratemo for the defendant that an application for arrest of judgment dated 9th October 2020 had already been filed. However the court noted as follows:-
7.Thereafter, an application dated 11th November 2020 for review of the court’s decision was filed, and a ruling delivered thereafter dismissing the request, which is the subject of this appeal.
8.Having considered the appeal, submissions filed, and the law, I am of the view that this appeal will succeed.
9.The first reason is that the trial court had already suspected or found prior to setting judgment date, that the alleged service of process on the defendant’s advocates was not satisfactory. Thus it was imperative on the trial court to be extra-courteous in this matter.
10.Secondly, an application to arrest judgment had been filed before the set judgment date, and that application should have been heard and determined first before delivery of judgment. Instead, that application was not heard and determined and the court noted that judgment was ready and stated that the application had been overtaken by events without giving the date when judgment was delivered, in order to render the prior filed application as overtaken by events. The Magistrate did not also specifically give or indicate the date when judgment was rendered, and indicate whether the court was aware of the application, when judgment was so delivered. The judgment could not in my view have been delivered on 9th October 2020, while it was set for 12th October 2020.
11.More importantly, denying the applicant herein the chance to ventilate their case would in my view amount to a violation of their right to fair hearing under Article 25 and 50 of the Constitution of Kenya, as it would mean condemning someone without being heard. In any event, in my view, an award of costs for re-opening the case would adequately compensate the respondent herein.
12.I thus allow the appeal and set aside the ruling of the trial court made on 28th April 2022 and order that the case before the trial court be re-opened, and the parties be heard in accordance with the applicable laws and rules. In this regard, I order that the matter be mentioned before the Magistrate’s court on 28th November 2023 for directions. Costs abide the decision in the trial.