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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. 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. 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. 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. 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.

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). 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, 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.”

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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. That on 28 th November 2002 both parties agreed to have the matter heard at 2.30 pm the same day but that the court did not record that agreement and that when Mr Kinyanjui went to court at 2.0 pm he realized that the suit had been heard and judgment reserved for 5 th December 2002 after the trial magistrate re fixing the hearing for 10 a.m. and taking it up for hearing at 11.15 a.m., while recording that Coram was as before yet there were no advocates before her earlier on that day. 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. 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.

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. 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: 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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Applying the principles set out in the Sielle v Associated Motor Boat Company Ltd (supra) re examination of the trial record is necessary. 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. 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. 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.

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