In determining the first issue above, it is important to lay down the established principles for setting aside exparte judgment. It was also submitted that what befell the trial magistrate was irrelevant and that the impugned ruling confirms that the court was firmly convinced that the defendant was aware of the time for hearing to be 9,10 and 11.30 a.m. not 2.30 pm. 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:- All the above factors have contributed to the delay. Needless to say that all documents/exhibits which the respondent produced in the lower court are insitu the original record. Therefore, a retrial would in no way prejudice the respondent, who will have his day in court and let the appellant too have his day in court to defend the suit.

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. 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. The respondent could have been compensated by costs for the delay occasioned by his advocate’s dilatoriness and the appellant should not have been denied a hearing because of his advocate’s mistake even if it amounted to negligence, in the circumstances of this case. (Shabir Din v Ram Parkash Anand (1955) 22 EACA 48,51 and Hancox J (as he then was) in Gurcharan Singh s/o Kesar Singh v Khudadad Khan t/a Khudadad Construction Company Nairobi HCCC 1547 of 1969).Later on the same day at 11.15 a.m. Mr Kinyanjui was present and pointed out to the court that his application was on record but that the registry was not able to give him a date for the hearing of the application earlier he sought for an adjournment. Therefore, did the trial magistrate exercise her discretion judiciously in declining to set aside her judgment to allow the defendant defend the suit? a) Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just ... The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E b) Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967] EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48. c) Thirdly the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah [1968] EA 93 In my humble view, the trial magistrate did not exercise her discretion judiciously when she dismissed the defendant/appellant’s application for setting aside the exparte judgment. I also find that the conduct of the proceedings did not accord the defendant a fair sense of justice and fairness before the trial court.

And when the judgment was finally delivered it was in favour of the plaintiff. But when Mr Kinyanjui applied to set it aside, his client’s application was dismissed with costs, with the trial magistrate’s outpouring frustrations and lamentations of how she had over indulged the defendant’s counsel. 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. The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are clearly set out in the case of Python Waweru Maina V Thuka Mugiria [1983] e KLR as follows: 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.

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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. The appeal was heard by Honourable Onyancha J 18 th June 2015 before he was transferred to Kabarnet High Court and owing to issues relating to his retirement age, the learned Judge was unable to write the judgment which he had reserved for delivery on 16 th September 2015. Accordingly, the record was returned to the Presiding Judge of the Civil Division Honourable Msagha Mbogholi J who directed that I write the judgment in this matter after proceedings were typed. 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.

What this appeal called for is indeed, interrogation of the exercise if judicial discretion by the trial court and in such interrogation, this court has been fortified and guided by the principles enunciated in Shah V Mbogo (supra) and Sielle Vs Associated Motor Boat Company Ltd (supra) cases as well as well as in the Pil Kenya Ltd Vs Oppong [2009] KLR 442 where the Court of Appeal made it clear that the appellate court should not interfere with judicial discretion exercised by the trial court unless it is satisfied that the trial judge/court misdirected himself/itself in some material respect by either failing to take into account relevant matters or taking into account extraneous matters and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the trial judge was clearly wrong in the exercise of discretion and occasioned injustice by such wrong exercise. The trial record shows that there was absolutely no delay occasioned by the defendant’s counsel in that he sought for leave to amend the defence on his first appearance for hearing on 25 th September 2002 and upon being granted an adjournment, on 17 th October 2002 he filed the said application annexing a draft amended defence, which application was, as per the record, given a hearing date for 18 th November 2002. The latter date is the same date on which the main suit was scheduled for hearing. It appears that on the said latter date, Mr Kinyanjui- from his affidavit, was engaged before the Honourable Mwera J in HCC 2176/01 as explained by Mr Mwaniki hence he instructed Mr Mwaniki to hold his brief. Mr Mwaniki did not indicate whether he had instructions to proceed with the matter. In a brief rejoinder, Mr Kinyanjui counsel for the appellant submitted that the trial court did not deal with all the issues. Further, that when counsel sought for the file to lodge the application for setting aside proceedings, the trial court replied confirming non availability of the court file until judgment would be delivered which was done in February 2003. He submitted that he was diligent in handling the matter on behalf of his client.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. 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. After hearing the application which was not defended, the trial magistrate dismissed the application with costs to the respondent/plaintiff vide her ruling of 19 th June 2003.

That nonetheless, the trial court dismissed the appellant’s application to set aside the exparte judgment although the application was prosecuted unopposed. Franato is a brand offering casual maternity dresses, shaping full slips for women, and seamless slips for women to customers. Our Franato review dives deep into the brand and its collection. We’ll provide the details on the quantity, price, and more to help you decide if these products are your new must-haves. Applying the above elaborate principles of law which have stood the test of times as applied in many other subsequent decisions of this court and of the Court of Appeal both pre and post the 2010 constitutional period, and in answering the first question, and as earlier stated, the setting aside of exparte judgment is an exercise of judicial discretion which exercise must therefore be judicious and not capricious or arbitrary and should not be exercised to assist a party who is hell bent to delay and derail the cause of justice for the adverse party.I observe that the first time the suit came up for hearing Mr Kinyanjui intimated to court that he needed to file an application for leave to amend the defence and the court grudgingly granted him a “last adjournment”and fixed a hearing date. 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. 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.