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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).

In addition, that the defendant’s counsel never filed the amended defence for which leave had been granted. 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. 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. The above process led to serious issues of impropriety being raised in the form of a complaint by Mr Kinyanjui against the trial magistrate besides him filing an application seeking for setting aside of the exparte proceedings before judgment could be delivered but by letter dated 5 th December 2002 Honourable H.A. Omondi SPM wrote to Mr Kinyanjui communicating the trial magistrate’s decision not release the trial file until after he judgment was written and delivered. And subject to the aforesaid provisions on powers of the appellate and, Subsection 2 of Section 78 of the Civil Procedure Act provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts or original jurisdiction in respect of suits instituted therein. The above provisions were the subject of interpretation by the Court of Appeal in SelleVs Associated Motor Boat Company Ltd. [1968] EA 123.

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Extra-firm shapewear, on the other hand, is a bit more hardcore and designed for special occasions when you want to look particularly stunning. Think of it as the secret weapon you pull out for weddings, formal events and special occasions. In opposition to the appeal, Mr Wasonga counsel for the respondent submitted that the record shows that on 28 th February 2001 the defendant filed an application dated 29 th October 2001 seeking for dismissal of the plaintiff’s case on the basis that the plaintiff had denied being an employee of the defendant company and that on 13 th March 2002 the trial court dismissed that application and directed that the suit proceeds to hearing. That on 25 th September 2002 when the suit came up for hearing the defendant sought leave to amend the defence and Mr Wasonga conceded but that indeed the record of the court does not show that concession but that nonetheless, the fact that the defendant actually filed the application would suggest that the court must have responded. 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 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. 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).

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This court notes that the said application was filed at the first instance before the suit was set down for hearing.

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 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. As earlier stated, this being a first appeal, this court is obliged to abide by the provisions of Section 78 of the Civil Procedure Act to evaluate and examine the lower court record and the evidence before it and arrive at its own conclusion. This principle of law was well settled in the case of Selle – Vs – Associated Motor boat Co. Ltd (1968) EA 123 where Sir Clement De Lestang stated that,

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).” 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. 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. 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.

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 93Mr 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. That when counsel realized that the court was determined to hear the case without considering the pending application for leave to amend the defence, he informed the court that in that case, therefore, he was not prepared to proceed with the trial , in view of the pending application to amend the defence, which application had not been prosecuted. 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. The Learned Magistrate erred in law and seriously misdirected herself when she failed to appreciate that in dismissing the appellant’s application dated May 19,2008 she denied the appellant the opportunity to defend the suit, violating its natural justice right to be heard in the suit. 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.