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That nonetheless, the trial court dismissed the appellant’s application to set aside the exparte judgment although the application was prosecuted unopposed. 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 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.

From the trial record as analyzed herein, I am persuaded, and it is manifest that the trial magistrate was clearly wrong in the exercise of her discretion and which wrong exercise occasioned a miscarriage of justice to the appellant. And if there had been any delay then that delay cannot be attributed to the defendant appellant herein as the respondent’s counsel wished this court to believe.In Mbogo v Shah the Court of Appeal rendered itself thus on the subject, as per Sir Clement De Lestang VP :- The trial magistrate explains that Judgment was delivered on 6 th February 2003 in favour of the plaintiff for shs 280,000 general damages plus costs in the presence of Ngugi for Wamalwa for the plaintiff and in the absence of the defendant. In addition, that the defendant’s counsel never filed the amended defence for which leave had been granted. 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. Those are factors which, in my humble view, the learned trial magistrate ought to have taken into consideration and which she did not, at the time she made her decision the adjourn the first hearing to another definite date yet the application for leave to amend the defence had not been filed.

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. that However, on 18 th November 2002 counsel for plaintiff/respondent herein submitted before the trial court that the defendant had failed to amend the defence and that he was ready to proceed with the trial that day yet the application for leave to amend the defence was before the court for hearing. That Mr Kinyanjui indicated to the court that he had served the application for leave to amend the defence upon the plaintiff’s counsel and that he was ready to prosecute the said application but that the trial court took the view that on 25 th September the court had given a last adjournment and that the appellant herein had presumably not amended the defence, and the that the trial court concluded that the defendant was delaying the trial upon which she fixed the hearing for 10.20 a.m. the same day.If you’re looking for a great overall solution, however, plenty of shapewear garments provide breathable full-torso support as well, but you can expect these garments to be more restrictive. Keep in mind that everyone’s body is different, and you want to look for the best shapewear to help you achieve the look and comfort level that matters to you personally. Best Basic Shapewear: Bali Women’s Shapewear Ultra Control Shaping Brief The Learned Magistrate erred and misdirected herself, in law and in fact when she found that the appellant had not justified setting aside the exparte judgment as prayed in the application dated May 19 th, 2003, yet there were sufficient grounds to set aside the said proceedings. 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. 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.

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. This court takes judicial notice that this suit was being prosecuted at a time when technicalities were the norm rather than the exception and that parties to suits endured so much delay of their cases being heard but from the record, the court gathers that the trial magistrate Mrs N.A. Owino impressively, was extremely keen to have the matter heard expeditiously which is the hall mark of justice, that justice shall not be delayed and that is why she granted last adjournment on the first hearing. From the way the trial magistrate was keen to have the matter heard on the first day, no doubt, she considered expeditious disposal of the suit as essential to the dispensation of justice. Therefore, the fact that she was vetted out of the judiciary, for whatever reasons, it has not been shown that the reason was related to complacence or delayed hearing of matters or in the delivery or judgments which is not the same as being corrupt.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.” 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.

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. 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. 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.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.