The trial record shows that there was absolutely no delay occasioned by the defendant’s counsel in that he sought for leave to amend the defence on his first appearance for hearing on 25 th September 2002 and upon being granted an adjournment, on 17 th October 2002 he filed the said application annexing a draft amended defence, which application was, as per the record, given a hearing date for 18 th November 2002. The latter date is the same date on which the main suit was scheduled for hearing. It appears that on the said latter date, Mr Kinyanjui- from his affidavit, was engaged before the Honourable Mwera J in HCC 2176/01 as explained by Mr Mwaniki hence he instructed Mr Mwaniki to hold his brief. Mr Mwaniki did not indicate whether he had instructions to proceed with the matter. What this appeal called for is indeed, interrogation of the exercise if judicial discretion by the trial court and in such interrogation, this court has been fortified and guided by the principles enunciated in Shah V Mbogo (supra) and Sielle Vs Associated Motor Boat Company Ltd (supra) cases as well as well as in the Pil Kenya Ltd Vs Oppong [2009] KLR 442 where the Court of Appeal made it clear that the appellate court should not interfere with judicial discretion exercised by the trial court unless it is satisfied that the trial judge/court misdirected himself/itself in some material respect by either failing to take into account relevant matters or taking into account extraneous matters and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the trial judge was clearly wrong in the exercise of discretion and occasioned injustice by such wrong exercise. 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,

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. 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.”

Both parties’ advocates were in agreement that the matter was old and that they did not wish to start the hearing denovo. That is how this court came to be seized of this age old appeal and my humble task now is to examine the record, reassess the affidavit evidence placed before the lower court, the submissions and decision by the trial court and arrive at my own independent conclusion, bearing in mind that I did not have the advantage of seeing and or hearing the parties as they canvassed the issues before the trial court. Neither did I have the advantage of hearing submissions by counsels for the parties so I must consider the record as it is. 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. 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.

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:- 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.” 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. On 26 th March 2001 the parties advocates appeared in the registry and fixed the suit for hearing on 25 th September 2001 at 9.30 a.m. which was the first time that the suit was being set down for hearing. Come 29 th September 2001, Mr Kinyanjui counsel for the defendant is recorded as indicating to court that he was not ready to proceed as he needed time to amend the defence. He sought for limited time to make the application. Mr Wamalwa counsel for the plaintiff opposed Mr Kinyanjui application on the ground that the defendants were served with a hearing notice and that they had sufficient time to amend their defence. The court recorded as follows: “last adjournment” and set the suit for hearing on 18 th November 2002, while condemning the defendant to pay costs of shs 5,000/- and the plaintiff’s costs. 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.”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.