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Franato Women's Full Body Slip Shapewear Control Dress Seamless Body Shaper
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The trial magistrate again fixed a hearing date for 28 th November 2002 and it is on the latter date that the matter proceeded in the absence of Mr Kinyanjui who deposed in his affidavit in support of the application for setting aside the exparte judgment that he had agreed with Mr Wamalwa to proceed at 2.20 pm and that by the trial court proceeding to hear the suit at 10.00 a.m. or 11.20 am, the court and the plaintiff were stealing a match on him and therefore his client who was denied a hearing. Although the trial magistrate’s comments that she did not comprehend the defence counsel’s sentiments in view of her elaborate explanation, this court does comprehend the concerns raised by Mr Kinyanjui, whose efforts to make the court understand his predicament came to naught. 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.
In addition, that the defendant’s counsel never filed the amended defence for which leave had been granted. The above process led to serious issues of impropriety being raised in the form of a complaint by Mr Kinyanjui against the trial magistrate besides him filing an application seeking for setting aside of the exparte proceedings before judgment could be delivered but by letter dated 5 th December 2002 Honourable H.A. Omondi SPM wrote to Mr Kinyanjui communicating the trial magistrate’s decision not release the trial file until after he judgment was written and delivered. I have considered the submissions by both parties’ advocates, which submissions essentially provide a detailed exposition of the trial record and what exactly transpired. This court notes that the said application was filed at the first instance before the suit was set down for hearing.
The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are clearly set out in the case of Python Waweru Maina V Thuka Mugiria [1983] e KLR as follows: 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.
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. 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. 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. If the magistrate had not felt able to examine the justice of the appellant’s application and whether there was a triable issue by questioning him and examining his pleadings, he should have at least offered him an adjournment, subject to being penalized for costs, so that the matter could be properly reviewed.
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In the instant case, and upon assessment of the case as a whole, I have come to an inescapable conclusion that the trial magistrate misdirected herself in failing to take into account relevant matters which I have set out including the procedure to be applied where there is an application for leave to amend pleadings; she failed to appreciate the fact that there was an application for leave to amend the defence pleading which application had to be disposed of before hearing the main suit; she failed to consider the legal principles applicable in application for setting aside exparte judgment and only concentrated on the “ intimidations” allegedly exhibited by the defence counsel which in essence clouded her sense of justice for the defendant litigant.
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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. 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. The Learned Magistrate erred in law and seriously misdirected herself when she dismissed the appellant’s application without regarding or considering at all the appellant’s affidavit of Francis Thaiya, sworn and dated 19 th May 2003 and the contents of that affidavit in support of the application.
That the dispute between the parties was not a trivial one, that a defence had been filed in time, that the respondent could have been compensated with costs and that the appellant should not have been denied the hearing because of the mistake of his advocate, were all matters which the magistrate failed to take into consideration in exercising his discretion and this entitled the judge to interfere with the decision, which he didn’t. (The El -Amria [1981] 2 Lloyds Rep 119, 123 CA).
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I further find that the trial court wrongly exercised her discretion in dismissing the appellant’s application. She did not exercise that discretion based on any of the established legal principles which I have enumerated in this judgment.
- Fruugo ID: 258392218-563234582
- EAN: 764486781913
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