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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). Mr Wamalwa indicated that he was ready to proceed but that he had no objection to the application. The record shows that the court only noted the date of the application as 17 th October 2002 and adjourned the matter to 28 th November 2002 for hearing. 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 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.

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: I further find that the trial court wrongly exercised her discretion in dismissing the appellant’s application. She did not exercise that discretion based on any of the established legal principles which I have enumerated in this judgment. 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.” The Learned Magistrate erred in law and in fact when she refused the appellant’s application dated May 19 th, 2003 when in fact the appellant had justified its pleas in the said application. courts of law exist to administer justice and in so doing they must of necessity balance between the competing rights and interests of different parties but within the confines of the law, to ensure the ends of justice are met. Inherent power is the authority possessed by a court implicitly without it being derived from the Constitution or statute.”

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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. 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:-

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.

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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 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).” 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. 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.On behalf of Mr Kinyanjui, Mr Mwaniki replied that the application was already served. The court remarked that “ on 25 th September 2002 the defendant were given the last adjournment. They have not even amended the defence. This is a ploy to delay the hearing of the case which this court will not succumb to. Case to proceed at 10.20 a.m.” In determining the first issue above, it is important to lay down the established principles for setting aside exparte judgment.

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 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.

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. The application also sought for stay of execution of the judgment and decree pending hearing and determination of the application.