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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. 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.

The Learned Magistrate erred in law and fact in dismissing the appellant’s unopposed application dated 19 th May 2003, and she thereby exhibited bias and prejudice against the appellant, as she alleged that the defendant/appellant has not done anything to amend its defence yet it had done so and the defence amended by consent of the parties. 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. 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. That on 17 th October 2002 the defence counsel filed an application and fixed it for hearing on 18 th November 2002 but that Mr Mwaniki holding brief for Mr Kinyanjui advocate sought for an adjournment. In addition, that the defendant’s counsel never filed the amended defence for which leave had been granted.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.

That nonetheless, the trial court dismissed the appellant’s application to set aside the exparte judgment although the application was prosecuted unopposed. 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. 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. 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. The nature of the action should be considered, the defence if one has been brought to the notice of the court, however irregularly, should be considered; the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered; and finally, it should be remembered that to deny the subject a hearing should be the last resort of a court. (Jamnadas v Sodha v Gordandas Hemraj (1952) 7 ULR 7)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. 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 the submissions on behalf of the appellant, Mr Harrison Kinyanjui advocate in support of this appeal, counsel submitted that the plaintiff/respondent’s suit in the lower court relates to compensation in general and special damages arising from alleged injuries while in the course of duty. That the defendant/appellant herein filed a defence denying the claim and that the suit was fixed for hearing before the trial magistrate on 25 th September 2002. 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.” 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. Both parties’ advocates were in agreement that the matter was old and that they did not wish to start the hearing denovo. That is how this court came to be seized of this age old appeal and my humble task now is to examine the record, reassess the affidavit evidence placed before the lower court, the submissions and decision by the trial court and arrive at my own independent conclusion, bearing in mind that I did not have the advantage of seeing and or hearing the parties as they canvassed the issues before the trial court. Neither did I have the advantage of hearing submissions by counsels for the parties so I must consider the record as it is. 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).”

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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. 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 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.

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. On 28 th November 2002 Mr Achoki advocate appeared on behalf of Mr Wamalwa and requested for a hearing for 10.00 a.m. and the court set the matter for hearing for 11.15 a.m. 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. 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. 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.

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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. 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