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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. that However, on 18 th November 2002 counsel for plaintiff/respondent herein submitted before the trial court that the defendant had failed to amend the defence and that he was ready to proceed with the trial that day yet the application for leave to amend the defence was before the court for hearing. That Mr Kinyanjui indicated to the court that he had served the application for leave to amend the defence upon the plaintiff’s counsel and that he was ready to prosecute the said application but that the trial court took the view that on 25 th September the court had given a last adjournment and that the appellant herein had presumably not amended the defence, and the that the trial court concluded that the defendant was delaying the trial upon which she fixed the hearing for 10.20 a.m. the same day. 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. 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.” 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).

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. If you’re looking for a great overall solution, however, plenty of shapewear garments provide breathable full-torso support as well, but you can expect these garments to be more restrictive. Keep in mind that everyone’s body is different, and you want to look for the best shapewear to help you achieve the look and comfort level that matters to you personally. Best Basic Shapewear: Bali Women’s Shapewear Ultra Control Shaping Brief 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.In addition, and as earlier stated, for the last one year when this judgment ought to have been delivered after the hearing of the appeal by Onyancha J(as he then was), the learned judge retired necessitating the typing of the proceedings and the files reassigned to judges in the Civil Division of the High Court for writing and delivering of the judgment. Again, after I was assigned the file herein, among other files, in June, 2016 I was deployed to the Judicial Review Division, an equally busy Division. This is what the trial magistrate stated:…….. “However the proper procedure is for counsels to wait for the judgment to be delivered and proceed to make an application to set aside.”

As earlier stated, this being a first appeal, this court is obliged to abide by the provisions of Section 78 of the Civil Procedure Act to evaluate and examine the lower court record and the evidence before it and arrive at its own conclusion. This principle of law was well settled in the case of Selle – Vs – Associated Motor boat Co. Ltd (1968) EA 123 where Sir Clement De Lestang stated that,

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Bias is never real. It is perceived and inferred from the conduct of a judicial officer in exercise of his or her judicial authority and power.