Franato Women's Full Body Slip Shapewear Control Dress Seamless Body Shaper

Product Information

The Learned Magistrate erred in law and in fact when she stated as her reasons in exercise of the discretion to dismiss the appellant’s application dated 19 th May 2003, that the defendant was not keen on having the suit in Nairobi CMCC 5389/2001 heard when infact the defendant had always desired the suit to be heard on merit.

That even the plaintiff’s counsel could not trace the file for filing of submissions and that on 6 th February 2003 judgment was delivered without submissions from either side and without notice to the defence. The nature of the action should be considered, the defence if one has been brought to the notice of the court, however irregularly, should be considered; the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered; and finally, it should be remembered that to deny the subject a hearing should be the last resort of a court. (Jamnadas v Sodha v Gordandas Hemraj (1952) 7 ULR 7)

It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision would have been different.” As I have stated earlier, where there is a request for amendment of pleadings as was the case in this case, and the court is inclined to grant leave to amend the pleadings, it was important that the court, while giving timelines, considers or exercises patience to allow the amendments to take effect before setting down the suit for hearing. Expedition should never override the ultimate goal of achieving justice for the parties; particularly where the delay is not inordinate. The court Honourable M.A. Murage Mrs (SRM) after considering that application dismissed it vide a ruling delivered on 14 th March 2002. This was before Honourable N.A. Owino Mrs SRM took over the conduct of the matter. In dismissing that application the trial magistrate held that the issue of whether or not the plaintiff wrote that letter voluntarily was a triable issue hence the matter should proceed to a full trial. The record also shows that Mr Wamalwa counsel for the plaintiff stated that he was ready to proceed and complained that the defendant was given a chance to amend the defence but that they had not. The court remarked that the defence were given the last adjournment and that they had not even amended the defence hence that adjournment being sought was a ploy to delay the hearing of the case and that therefore the matter would proceed at 1.20 a.m. On that very day Mr Kinyanjui appeared at 11.15 a.m. and notified the court that there was an application on record and that the registry was not able to give an earlier date. Mr Wamalwa indicated that he was not opposed to the application for amendment. The court granted adjournment with costs.

That nonetheless, the trial court dismissed the appellant’s application to set aside the exparte judgment although the application was prosecuted unopposed. In the instant case, and upon assessment of the case as a whole, I have come to an inescapable conclusion that the trial magistrate misdirected herself in failing to take into account relevant matters which I have set out including the procedure to be applied where there is an application for leave to amend pleadings; she failed to appreciate the fact that there was an application for leave to amend the defence pleading which application had to be disposed of before hearing the main suit; she failed to consider the legal principles applicable in application for setting aside exparte judgment and only concentrated on the “ intimidations” allegedly exhibited by the defence counsel which in essence clouded her sense of justice for the defendant litigant. That the Learned Magistrate erred in law and in fact in dismissing the appellant’s application dated 19th May 2003 when the respondent had not in law opposed the said application.That following those developments, the defendant’s counsel expeditiously went to his chambers and prepared an application to set aside the exparte proceedings of 28th November 2002. That the application was filed on 19 th May 2003 because the file was not available as the trial magistrate had taken it away for writing of the judgment. The learned trial magistrate accordingly dismissed the appellant’s application for setting aside exparte judgment with costs, thereby provoking this appeal as set out in the 7 grounds of the Memorandum of Appeal reproduced earlier on. On 26 th March 2001 the parties advocates appeared in the registry and fixed the suit for hearing on 25 th September 2001 at 9.30 a.m. which was the first time that the suit was being set down for hearing. Come 29 th September 2001, Mr Kinyanjui counsel for the defendant is recorded as indicating to court that he was not ready to proceed as he needed time to amend the defence. He sought for limited time to make the application. Mr Wamalwa counsel for the plaintiff opposed Mr Kinyanjui application on the ground that the defendants were served with a hearing notice and that they had sufficient time to amend their defence. The court recorded as follows: “last adjournment” and set the suit for hearing on 18 th November 2002, while condemning the defendant to pay costs of shs 5,000/- and the plaintiff’s costs.

Some of the matters to be considered when an application is made are, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any other material factors which appear to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex parte and whether or not it would be just and reasonable, to set aside or vary the judgment, upon terms to be imposed (Jesse Kimani v McConnell [1966] EA 547, 555 F). Applying the principles set out in the Sielle v Associated Motor Boat Company Ltd (supra) re examination of the trial record is necessary. In the end, I find that this court would be justified in the circumstances of this case to interfere with the discretion of the trial court.

Mr Wasonga urged the court to take into account all relevant issues and come to a proper conclusion and further submitted that the delay in prosecuting this appeal is consistent with the defendant’s conduct all along hence the appeal should be dismissed to allow the plaintiff/ respondent to enjoy fruits of his judgment. Finally, that too much time had passed and that a retrial would disrupt lives since documents are lost. Counsel submitted that a retrial is not suitable and that an end to litigation is necessary.

In the submissions on behalf of the appellant, Mr Harrison Kinyanjui advocate in support of this appeal, counsel submitted that the plaintiff/respondent’s suit in the lower court relates to compensation in general and special damages arising from alleged injuries while in the course of duty. That the defendant/appellant herein filed a defence denying the claim and that the suit was fixed for hearing before the trial magistrate on 25 th September 2002. This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally ( Abdul Hammad Sarif – Vs – Ali Mohammed Solan (1955, 22 EACA 270).” And in the case of Mbogo – Vs – Shah & Another (1968) EA 93,the court set out circumstances under which an appellate court may interfere with a decision of the trial court as follows:- The trial magistrate again fixed a hearing date for 28 th November 2002 and it is on the latter date that the matter proceeded in the absence of Mr Kinyanjui who deposed in his affidavit in support of the application for setting aside the exparte judgment that he had agreed with Mr Wamalwa to proceed at 2.20 pm and that by the trial court proceeding to hear the suit at 10.00 a.m. or 11.20 am, the court and the plaintiff were stealing a match on him and therefore his client who was denied a hearing. It was therefore after the judgment was delivered on 6 th February 2003 that Mr Kinyanjui filed his application for stay of execution and for setting aside of exparte judgment, which application is dated 19 th May 2003 and which was heard unopposed but the trial magistrate dismissed it with costs on 19 th June 2003, while bitterly complaining against Mr Kinyanjui as having intimidated him while affirming that she would stand firm against such intimidations and denying ever being biased against any party in that case and stating that she had no reason to. The trial magistrate in her ruling maintained that the defendant had more than his share of the adjournments; that he did not validate his defence despite too much time having been given to him and that therefore indulgence ought to be given to the plaintiff too.

Anybody reading that explanatory note by the trial magistrate gets the impression that it was obvious that she was going to determine the matter in favour of the respondent anyway and therefore the appellant had to wait until that predetermined decision is out before seeking to set it aside. Further, that on 28th November 2002 the court started its business at 9.00 am but re fixed the matter at 10.00 a.m. Although the record does not show what transpired at 10.00a.m. And that the record shows that at 11.00 a.m. the matter proceeded and Coram is recorded as before. Bias is never real. It is perceived and inferred from the conduct of a judicial officer in exercise of his or her judicial authority and power. Both parties’ advocates were in agreement that the matter was old and that they did not wish to start the hearing denovo. That is how this court came to be seized of this age old appeal and my humble task now is to examine the record, reassess the affidavit evidence placed before the lower court, the submissions and decision by the trial court and arrive at my own independent conclusion, bearing in mind that I did not have the advantage of seeing and or hearing the parties as they canvassed the issues before the trial court. Neither did I have the advantage of hearing submissions by counsels for the parties so I must consider the record as it is.