ELIAS MASIJA NYANG'ORO AND 2 OTHERS VS. MWANANCHI INSURANCE COMPANY LIMITEDCIVIL APPEAL No. 278 OF 2019.

Abstract

(i) It is, perhaps, pertinent to observe that, the law in this Country, like the Laws of other jurisdictions, recognizes, that generally the High Court may set aside an ex-parte judgment upon an application being made by an aggrieved party and upon the applicant assigning good reasons that prevented him from appearing when the matter was fixed for hearing. (ii) Therefore, the underlying factor in granting or not granting the application to set aside ex-parte order is for the applicant to demonstrate that they were prevented by good or sufficient cause to do what they were required to do by law or order of the Court. (iii) Order IX, Rule 13 (1) and (2) of the Civil Procedure Code, R.E 2002 is to ensure that parties to the suit do not sleep on their rights but rather responsibly pursue their rights in the spirit of effective case management. (iv) The exercise of discretion by the lower Court can rarely be interfered with where it is clear that the decision arrived at was a result of erroneous exercise of discretion through either omission to take into consideration relevant matters or taking into account irrelevant extraneous matters and misdirecting itself. (v) A party to a case who engages the service of an advocate, has a duty to closely follow up the progress and status of his case. (vi) The overarching policy objective behind effective case management is to ensure timely dispensation of justice which requires judicial officers to manage important steps and events in the case without occasioning injustice. (vii) Judicial officers are duty bound to ensure that cases are determined expediently, fairly and dutifully without allowing litigants who in one way or the other deliberately seek to obstruct or delay the cause of justice. To allow that will amount to abdicating our Constitutional mandate of timely dispensation of justice. It will also amount to paving way to a sure road to a grave miscarriage of justice.