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It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision would have been different.”

The learned trial magistrate accordingly dismissed the appellant’s application for setting aside exparte judgment with costs, thereby provoking this appeal as set out in the 7 grounds of the Memorandum of Appeal reproduced earlier on. The delay is because of wrong exercise of discretion by the trial court with the aid of the respondent’s counsel who did not appreciate the necessity to accord d the defendant an opportunity to adequately prepare its pleadings before a hearing of the case could commence; and as concerns this appeal, which has taken nearly 13 years to be determined, I have not seen from the record, how the appellant caused the delay as the matter has been active throughout and during the lapse, no application to dismiss the appeal for want of prosecution was ever filed by the respondent to demonstrate his vigilance. a discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. (Smith v Middleton [1972] SC 30)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.

I observe that the first time the suit came up for hearing Mr Kinyanjui intimated to court that he needed to file an application for leave to amend the defence and the court grudgingly granted him a “last adjournment”and fixed a hearing date. 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.

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.”

Regrettably, what this court finds on record in the ruling of the learned trial magistrate are lamentations of how she had indulged the advocate for the defendant, who appeared hell bent to delay and derail the hearing of the case, and who also allegedly appeared to be intimidating her with incessant requests for indulgence to enable him amend his client’s defence before the hearing could commence. Mr Wasonga urged the court to take into account all relevant issues and come to a proper conclusion and further submitted that the delay in prosecuting this appeal is consistent with the defendant’s conduct all along hence the appeal should be dismissed to allow the plaintiff/ respondent to enjoy fruits of his judgment. Finally, that too much time had passed and that a retrial would disrupt lives since documents are lost. Counsel submitted that a retrial is not suitable and that an end to litigation is necessary. That nonetheless, the trial court dismissed the appellant’s application to set aside the exparte judgment although the application was prosecuted unopposed. 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.”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. I note that when Mr Kinyanjui sought for an adjournment to enable him file an application for leave to amend since it appears that as at that time, pleadings had closed, the court grudgingly, and granted him the adjournment proceeded to fix a hearing date, without paying regard to the question of whether, upon the filing of the application for leave for amendment of the defence, the plaintiff would have wished to file a reply or whether the plaintiff, upon being served with a draft amended defence, would have wished to file an amended plaint. 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 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).