The above position notwithstanding, cases belong to parties, who must be given opportunities to put forth the best of their sides of the cases. Where a party seeks at the first hearing for leave to amend their pleadings, I do not see any prejudice that would have been occasioned to the plaintiff if the defendant had been allowed to amend its pleadings before the suit was set down for hearing. By granting last adjournment on the first date of hearing of the case, Justice, in this case, was being sacrificed at the altar of expedition, which should never have been the case, especially where that would occasion prejudice to the other party. 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 application also sought for stay of execution of the judgment and decree pending hearing and determination of the application. That the court allowed the defendant/appellant to file an application to amend the defence and on 17 th October 2002, the application for leave to amend the defence was filed and fixed for hearing on 18 th November 2002. 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.

On 28 th November 2002 Mr Achoki advocate appeared on behalf of Mr Wamalwa and requested for a hearing for 10.00 a.m. and the court set the matter for hearing for 11.15 a.m.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. As I have stated earlier, where there is a request for amendment of pleadings as was the case in this case, and the court is inclined to grant leave to amend the pleadings, it was important that the court, while giving timelines, considers or exercises patience to allow the amendments to take effect before setting down the suit for hearing. Expedition should never override the ultimate goal of achieving justice for the parties; particularly where the delay is not inordinate. In opposition to the appeal, Mr Wasonga counsel for the respondent submitted that the record shows that on 28 th February 2001 the defendant filed an application dated 29 th October 2001 seeking for dismissal of the plaintiff’s case on the basis that the plaintiff had denied being an employee of the defendant company and that on 13 th March 2002 the trial court dismissed that application and directed that the suit proceeds to hearing. That on 25 th September 2002 when the suit came up for hearing the defendant sought leave to amend the defence and Mr Wasonga conceded but that indeed the record of the court does not show that concession but that nonetheless, the fact that the defendant actually filed the application would suggest that the court must have responded.

Later on the same day at 11.15 a.m. Mr Kinyanjui was present and pointed out to the court that his application was on record but that the registry was not able to give him a date for the hearing of the application earlier he sought for an adjournment.The trial magistrate again fixed a hearing date for 28 th November 2002 and it is on the latter date that the matter proceeded in the absence of Mr Kinyanjui who deposed in his affidavit in support of the application for setting aside the exparte judgment that he had agreed with Mr Wamalwa to proceed at 2.20 pm and that by the trial court proceeding to hear the suit at 10.00 a.m. or 11.20 am, the court and the plaintiff were stealing a match on him and therefore his client who was denied a hearing. 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.” It was also submitted that what befell the trial magistrate was irrelevant and that the impugned ruling confirms that the court was firmly convinced that the defendant was aware of the time for hearing to be 9,10 and 11.30 a.m. not 2.30 pm.