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With due respect to the proceedings of that day 18 th November 2002, this court is perturbed by the fact that it is clear that the appellant herein had filed an application for leave to amend the defence and the said application had been given that very date for the hearing of the application which had been served upon the respondent. If the magistrate had not felt able to examine the justice of the appellant’s application and whether there was a triable issue by questioning him and examining his pleadings, he should have at least offered him an adjournment, subject to being penalized for costs, so that the matter could be properly reviewed. 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.” 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).”

Albeit the trial court observed in that impugned ruling observed that it had given the defence counsel a chance to validate his defence and that he had failed to do so, the record does not even reveal that she granted the application for leave to amend the defence or at all. It is therefore not clear what “ validation” the trial magistrate was referring to in her ruling and which the defence counsel had abdicated. Regrettably, what this court finds on record in the ruling of the learned trial magistrate are lamentations of how she had indulged the advocate for the defendant, who appeared hell bent to delay and derail the hearing of the case, and who also allegedly appeared to be intimidating her with incessant requests for indulgence to enable him amend his client’s defence before the hearing could commence. Mr Wamalwa opposed an adjournment on the ground that the date was taken by consent, Counsel for the defendant had not informed him of the problem and that witnesses were in court hence he was ready to proceed. Mr Wamalwa also stated that the defendants were given a chance to amend the defence which they had not hence they were delaying the case. 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. Therefore, did the trial magistrate exercise her discretion judiciously in declining to set aside her judgment to allow the defendant defend the suit?

The application also sought for stay of execution of the judgment and decree pending hearing and determination of the application. The above position notwithstanding, cases belong to parties, who must be given opportunities to put forth the best of their sides of the cases. Where a party seeks at the first hearing for leave to amend their pleadings, I do not see any prejudice that would have been occasioned to the plaintiff if the defendant had been allowed to amend its pleadings before the suit was set down for hearing. By granting last adjournment on the first date of hearing of the case, Justice, in this case, was being sacrificed at the altar of expedition, which should never have been the case, especially where that would occasion prejudice to the other party. To counter that application and letter the plaintiff swore an affidavit on 13 th February 2002 denying that he or at all voluntarily wrote such a letter disowning his claim or instructing his advocate to file suit on his behalf and contending that the letter had been written by one Francis Ndichu Thaiya of the defendant company who asked the plaintiff to copy it in the latter’s handwriting promising to pay the plaintiff for his injury and that the letter was used to mislead the plaintiff hence he disowned it.

This is what the trial magistrate stated:…….. “However the proper procedure is for counsels to wait for the judgment to be delivered and proceed to make an application to set aside.” I have considered the submissions by both parties’ advocates, which submissions essentially provide a detailed exposition of the trial record and what exactly transpired. I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion.” I note that when Mr Kinyanjui sought for an adjournment to enable him file an application for leave to amend since it appears that as at that time, pleadings had closed, the court grudgingly, and granted him the adjournment proceeded to fix a hearing date, without paying regard to the question of whether, upon the filing of the application for leave for amendment of the defence, the plaintiff would have wished to file a reply or whether the plaintiff, upon being served with a draft amended defence, would have wished to file an amended plaint. 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.

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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. In determining the first issue above, it is important to lay down the established principles for setting aside exparte judgment. The judge had misdirected himself in stating that the appellant had not been present in person at the hearing of the summons to set aside the ex parte judgment while the record showed that he had been present and had stated the essence of his defence. The judge had made an error of fact which, if he had not made, he would have considered the decision of the magistrate in a different light.

This is not to say that this court’s decision would have been different, but as was held in Equity Bank Limited Vs West Link MBO Ltd, Civil App No. 78/2011: The appellant’s application to amend the defence be reconsidered and Nairobi CMCC 5380/2001 shall be reheard afresh before any other magistrate of competent jurisdiction as Mrs N.A. Owino has since left the judiciary. The delay is because of wrong exercise of discretion by the trial court with the aid of the respondent’s counsel who did not appreciate the necessity to accord d the defendant an opportunity to adequately prepare its pleadings before a hearing of the case could commence; and as concerns this appeal, which has taken nearly 13 years to be determined, I have not seen from the record, how the appellant caused the delay as the matter has been active throughout and during the lapse, no application to dismiss the appeal for want of prosecution was ever filed by the respondent to demonstrate his vigilance.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) The trial magistrate also wrote an explanatory letter to the SPM giving a chronology of events leading to the complaint by Mr Kinyanjui and asking that Mr Kinyanjui waits until the judgment is delivered then he can apply 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.