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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. I note that when Mr Kinyanjui sought for an adjournment to enable him file an application for leave to amend since it appears that as at that time, pleadings had closed, the court grudgingly, and granted him the adjournment proceeded to fix a hearing date, without paying regard to the question of whether, upon the filing of the application for leave for amendment of the defence, the plaintiff would have wished to file a reply or whether the plaintiff, upon being served with a draft amended defence, would have wished to file an amended plaint. 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.

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.

And in the case of Mbogo – Vs – Shah & Another (1968) EA 93,the court set out circumstances under which an appellate court may interfere with a decision of the trial court as follows:- The Learned Magistrate erred in law and seriously misdirected herself when she failed to appreciate that in dismissing the appellant’s application dated May 19,2008 she denied the appellant the opportunity to defend the suit, violating its natural justice right to be heard in the suit.

In my humble view, the trial magistrate did not exercise her discretion judiciously when she dismissed the defendant/appellant’s application for setting aside the exparte judgment. I also find that the conduct of the proceedings did not accord the defendant a fair sense of justice and fairness before the trial court. The Learned Magistrate erred in law and in fact when she stated as her reasons in exercise of the discretion to dismiss the appellant’s application dated 19 th May 2003, that the defendant was not keen on having the suit in Nairobi CMCC 5389/2001 heard when infact the defendant had always desired the suit to be heard on merit.a) Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just ... The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E b) Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967] EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48. c) Thirdly the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah [1968] EA 93 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. 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. With due respect to the proceedings of that day 18 th November 2002, this court is perturbed by the fact that it is clear that the appellant herein had filed an application for leave to amend the defence and the said application had been given that very date for the hearing of the application which had been served upon the respondent. 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.

The proceedings, Judgment and decree of N.A. Owino (Mrs) Senior Resident Magistrate (as she then was) in Nairobi CM CC 5380/2001 be and are hereby vacated and set aside. I think it is well settled that this Court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 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. Anybody reading that explanatory note by the trial magistrate gets the impression that it was obvious that she was going to determine the matter in favour of the respondent anyway and therefore the appellant had to wait until that predetermined decision is out before seeking to set it aside. That on 28 th November 2002 both parties agreed to have the matter heard at 2.30 pm the same day but that the court did not record that agreement and that when Mr Kinyanjui went to court at 2.0 pm he realized that the suit had been heard and judgment reserved for 5 th December 2002 after the trial magistrate re fixing the hearing for 10 a.m. and taking it up for hearing at 11.15 a.m., while recording that Coram was as before yet there were no advocates before her earlier on that day.Regrettably, what this court finds on record in the ruling of the learned trial magistrate are lamentations of how she had indulged the advocate for the defendant, who appeared hell bent to delay and derail the hearing of the case, and who also allegedly appeared to be intimidating her with incessant requests for indulgence to enable him amend his client’s defence before the hearing could commence.