Charles Wesonga Mbingi v Bernard Odhiambo Omusi & another [2020] eKLR Case Summary

Court
High Court of Kenya at Kisumu
Category
Civil
Judge(s)
T.W. Cherere
Judgment Date
October 14, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2
Explore the case summary of Charles Wesonga Mbingi v Bernard Odhiambo Omusi & another [2020] eKLR, highlighting key rulings and implications in Kenyan law.

Case Brief: Charles Wesonga Mbingi v Bernard Odhiambo Omusi & another [2020] eKLR

1. Case Information:
- Name of the Case: Charles Wesonga Mbingi v. Bernard Odhiambo Omusi & Attorney General
- Case Number: Civil Case No. 64 of 2018
- Court: High Court of Kenya at Kisumu
- Date Delivered: 14th October 2020
- Category of Law: Civil
- Judge(s): T.W. Cherere
- Country: Kenya

2. Questions Presented:
The primary legal issue before the court was whether the Appellant's right to be heard was violated due to the absence of his counsel at the hearing, which ultimately led to a judgment against him.

3. Facts of the Case:
The Appellant, Charles Wesonga Mbingi, filed an appeal against a ruling from the lower court (Kisumu CMCC No. 86 of 2016) where he was represented by counsel who failed to inform him of the hearing date. On 6th March 2018, the court proceeded with the hearing in the absence of the Appellant, resulting in a judgment against him for Kshs. 1,200,000. The Appellant subsequently filed an application to set aside this judgment, arguing that his constitutional right to be heard had been infringed.

4. Procedural History:
After the judgment on 22nd May 2018, the Appellant filed an application on 28th May 2018 to set aside the judgment, which was dismissed by the trial court on 17th July 2018. Dissatisfied with this ruling, the Appellant appealed to the High Court on 20th July 2018. The appeal was argued through written submissions, and the High Court was tasked with re-evaluating the evidence and determining if the trial court had erred in its decision.

5. Analysis:
- Rules: The court referenced the civil procedure rules aimed at ensuring just and equitable resolutions of disputes. The relevant constitutional provision was Article 159, which emphasizes the right to be heard.
- Case Law: The court cited the case of *Selle & Another v. Associated Motor Boat Co. Ltd & Another (1968) EA 123*, which outlines the appellate court's role in re-evaluating evidence. Additionally, the court referred to *Belinda Murai & 9 others vs. Amos Wainaina [1979] eKLR*, emphasizing that mistakes made by counsel should not close the door to justice.
- Application: The court found that the Appellant's absence was due to a legitimate mistake by his counsel, which warranted rectification. It noted that denying the Appellant the opportunity to be heard would contravene the principles of justice, especially since the Appellant acted promptly in filing his application to set aside the judgment.

6. Conclusion:
The High Court ruled in favor of the Appellant, setting aside the lower court's ruling that had dismissed his application. The court allowed the Appellant to amend his defense, emphasizing the importance of the right to be heard and the need for courts to facilitate justice.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya upheld the Appellant’s right to be heard, reversing the lower court's decision that had denied him a chance to defend his case. The ruling underscores the judiciary's commitment to ensuring that procedural mistakes do not hinder access to justice, thereby reinforcing the principles of fairness and equity in legal proceedings.

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