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Franato Women's Full Body Slip Shapewear Control Dress Seamless Body Shaper

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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.” And subject to the aforesaid provisions on powers of the appellate and, Subsection 2 of Section 78 of the Civil Procedure Act provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts or original jurisdiction in respect of suits instituted therein. The above provisions were the subject of interpretation by the Court of Appeal in SelleVs Associated Motor Boat Company Ltd. [1968] EA 123.

The Learned Magistrate erred and misdirected herself, in law and in fact when she found that the appellant had not justified setting aside the exparte judgment as prayed in the application dated May 19 th, 2003, yet there were sufficient grounds to set aside the said proceedings. 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) 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.

This court takes judicial notice that this suit was being prosecuted at a time when technicalities were the norm rather than the exception and that parties to suits endured so much delay of their cases being heard but from the record, the court gathers that the trial magistrate Mrs N.A. Owino impressively, was extremely keen to have the matter heard expeditiously which is the hall mark of justice, that justice shall not be delayed and that is why she granted last adjournment on the first hearing. From the way the trial magistrate was keen to have the matter heard on the first day, no doubt, she considered expeditious disposal of the suit as essential to the dispensation of justice. Therefore, the fact that she was vetted out of the judiciary, for whatever reasons, it has not been shown that the reason was related to complacence or delayed hearing of matters or in the delivery or judgments which is not the same as being corrupt.

The Court of Appeal also held in Caroline Elsa Anne Sturdy v John Greaves Hilder [1984] eKLR”) per Nyarangi, AG. J. A . (as he then was) that:- Mr Wamalwa opposed an adjournment on the ground that the date was taken by consent, Counsel for the defendant had not informed him of the problem and that witnesses were in court hence he was ready to proceed. Mr Wamalwa also stated that the defendants were given a chance to amend the defence which they had not hence they were delaying the case. To counter that application and letter the plaintiff swore an affidavit on 13 th February 2002 denying that he or at all voluntarily wrote such a letter disowning his claim or instructing his advocate to file suit on his behalf and contending that the letter had been written by one Francis Ndichu Thaiya of the defendant company who asked the plaintiff to copy it in the latter’s handwriting promising to pay the plaintiff for his injury and that the letter was used to mislead the plaintiff hence he disowned it. 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.

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. This being a first appeal, this court is obliged to abide by the provisions of Section 78 of the Civil Procedure Act which empowers the court to: 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. 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.

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. 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.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. 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. 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:

All the above factors have contributed to the delay. Needless to say that all documents/exhibits which the respondent produced in the lower court are insitu the original record. Therefore, a retrial would in no way prejudice the respondent, who will have his day in court and let the appellant too have his day in court to defend the suit. 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).” In Mbogo v Shah the Court of Appeal rendered itself thus on the subject, as per Sir Clement De Lestang VP :-

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The judge had misdirected himself in stating that the appellant had not been present in person at the hearing of the summons to set aside the ex parte judgment while the record showed that he had been present and had stated the essence of his defence. The judge had made an error of fact which, if he had not made, he would have considered the decision of the magistrate in a different light.

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