Case ID:175660

Leonard Makokha Otungo v Dennis Juma Mwongela [2021] eKLR

Case Metadata

Case Number:

Civil Appeal 002 of 2020

Parties:

Leonard Makokha Otungo v Dennis Juma Mwongela

Date Delivered:

25 May 2021

Case Class:

Civil

Court:

High Court at Busia

Case Action:

Judgment

Judge(s):

Joseph Raphael Karanja

Citation:

Leonard Makokha Otungo v Dennis Juma Mwongela [2021] eKLR

Advocates:

Calistus & Co. Advocates for the Appellant

Balongo & Co. Advocate for the Respondent

Court Division:

Civil

County:

Busia

Advocates:

Calistus & Co. Advocates for the Appellant

Balongo & Co. Advocate for the Respondent

History Docket No:

CMCC No.145 OF 2018

History County:

Busia

Case Outcome:

Appeal dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL APPEAL NO.E002 OF 2020

LEONARD MAKOKHA OTUNGO............................APPELLANT

VERSUS

DENNIS JUMA MWONGELA................................RESPONDENT

J U D G M E N T

1. This appeal arises from the ruling delivered on the 10

th

September 2020 by the Chief Magistrate at Busia in

CMCC No.145 OF 2018

in which the appellant,

LEONARD MAKOKHA OTUNGO

sued the respondent,

DENNIS JUMA MWONGELA

and another for damages arising from a road traffic accident which occurred on or about the 26

th

October 2017, along the Busia – Mumias Road within Nambale area near St. Mary’s Primary School involving the respondent’s motor vehicle

REG No.KBM 151L

and the appellant who was lawfully walking as a pedestrian along the said road.

2.

It was the appellant’s contention that the said motor vehicle was on the material date driven by the respondent in a manner which was so negligent and reckless such that it veered off the road and hit the appellant thereby occasioning him serious bodily injuries.

The appellant therefore prayed for special and general damages as well as future radical expenses against the respondent whose apparent statement of defence dated 28

th

June 2018, was filed herein by

MULWA NDUYA & CO. ADVOATES

, but more in relation to the previous first defendant,

DODHIA MOTORS LTD

, even though the memorandum of appearance was filed on behalf of both defendants by

OCHARO KEBIRA & CO. ADVOCATES

.

3.

Be that as it may, in a ruling made by the trial court on 28

th

February 2019, the then first defendant was struck off and removed as such defendant. The matter was therefore to proceed to hearing against the then second defendant (respondent) only, and when it was mentioned on 23

rd

May 2019,

MR JUMBA

, advocate, requested for two weeks to come on record presumably for the remaining second defendant (

RESPONDENT

). However, by the time the matter came up for hearing on 5

th

November 2019, the said advocate had not formally come into the record. Neither the respondent nor his advocate (

IF ANY

) were present in court on that date. The matter therefore proceeded to hearing in their absence.

4. Thereafter, on the 17

th

December 2019, the court delivered its judgment in favour of the appellant. After eight (

8

) months or thereabout the respondent filed an application vide the notice of motion dated 24

TH

AUGUST 2020 seeking orders for stay of execution of the decree and setting aside of the judgment.The application was heard and a ruling in respect thereof was made on

10

TH

SPETMEBER 2020

, in favour of the respondent/defendant.

The judgment delivered by the trial court on 17

th

December 2019 was thus set aside together with all consequential orders.

5. Being aggrieved by the said ruling, the appellant preferred this appeal on the basis of the grounds set out in the memorandum of appeal dated 25

th

September 2020, filed herein by

CALISTUS & CO. ADVOCATES

. The appeal was canvassed by way of written submissions which were filed by the appellant on 16

th

April 2021. The respondent’s submissions opposing the appeal were filed on 12

th

April, 2021 by

BALONGO & CO. ADVOCATES

.

6. Basically, the duty of this court at this juncture was to reconsider the evidential material availed to the trial court at the hearing of the application and arrive at its own conclusions. (see,

SELLE V ASSOCIATED MOTOR BOAT CO. [1968] E.A 123

).

Having done so, against the grounds of appeal and the rival submissions, this court forms the opinion that the appeal turns on the legal representation of the respondent at the hearing of the main suit on the 5

th

November 2019. This is actually the substratum of the appeal.

7. It was the appellant’s contention that as at the hearing of the suit before the trial court on 5

th

November 2019, the respondent was represented by the firm of Ocharo Kebria & Co. Advocates but not Balongo & Co. Advocates whose Mr. Jumba, appeared and asked for two weeks to come on record on behalf of the respondent but never did so at any one time thereby causing the appellant to serve the necessary hearing notice upon the proper advocates on record i.e. Ocharo Kebira & Co. Advocates.

8. The appellant further contended and implied that Balongo & Co. Advocates could not have filed a statement of defence on 12

th

July 2019, as they requested for time to come on record on 5

th

November 2019. It was on the basis of the foregoing factors that the appellant faulted the trial court for finding that Balongo & Co. Advocates were proper on record for the respondent prior to the delivery of the judgment and that they were not properly or at all served with a hearing notice for 5

th

November 2019.

9.

In its rejoinder, the respondent dealt mainly on the competence or otherwise of the appeal on the basis that the order appealed from has not been attached to the record of appeal. However, this fact is disproved by the record filed herein by the appellant on 20

th

January 2021. In any event, the issue would border more on technicality rather than substance of the appeal. It is not the duty of the court to give undue regard to matters of procedural technicalities rather than substance of the dispute.

10. On the issue of representation, the respondent contended that the trial court did not err when it found that the firm of Balongo & Co. Advocates were proper on record and were not served with the necessary hearing notice even if the firm of Ocharo Kebira & Co. Advocate was also on record for the respondent.

This court, having carefully perused the material lower court proceedings is satisfied that the record does not vindicate the appellant but the respondent. It clearly shows that the firm of Balongo & Co. Advocates were proper on record for the respondent prior and after the delivery of the impugned judgment but were not served with the pre requisite hearing notice. The appellant therefore proceeded with the hearing of the suit in the absence of the respondent who had no prior notice of the hearing. As it were, the respondent was denied an opportunity to be heard and was thus condemned unheard.

11. t is ironic that the appellant forged ahead with the hearing of the appeal when the lower court record was very clear on the respondent’s legal representation prior and after the delivery of the impugned judgement. In doing so, the appellant attempted without success to violate the respondent’s right to a fair hearing of the claim against him.

In sum this appeal is lacking in merit and is hereby dismissed with costs to the respondent.

Ordered accordingly.

J.R. KARANJAH

J U D G E

[Delivered and signed this 25

TH

day of MAY 2021].