[2022] KEHC 14360 (KLR)

Africa Inland Church, Isaalala (Suing through the Church Secretary) Joshua Ngula Munyoki & another v Africa Inland Church-Kenya Kitui Area Church Council (Sued through the area Bishop) Benjamin Mule Mukuu & another (Civil Appeal 26 of 2018) [2022] KEHC 14360 (KLR) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14360 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 26 of 2018

RK Limo, J

October 18, 2022

Between

Africa Inland Church, Isaalala (Suing through the Church Secretary) Joshua Ngula Munyoki

1st Appellant

Pastor Joshua Malombe

2nd Appellant

and

Africa Inland Church-Kenya Kitui Area Church Council (Sued through the area Bishop) Benjamin Mule Mukuu

1st Respondent

African Inland Church-Kenya Lower Yatta Region Church Council (Sued through the Chairman) James Manzolo

2nd Respondent

(Appeal against a Ruling of Hon. M. Murage-Chief Magistrate made vide Kitui Chief Magistrate Civil Case No. 503 of 2016 delivered on 12th June 2018)

Judgment

1. This interlocutory appeal is in respect to a ruling of Hon M Murage Chief Magistrate made vide Kitui Chief Magistrate Civil Case No 503 of 2016 on June 12, 2018. In that matter which had been consolidated with Kitui Chief Magistrate Court Civil Case No 515 of 2016, the trial court disallowed the appellants’ application for adjournment and directed the matter to proceed and since the appellants were the plaintiffs, their suit was dismissed and the matter proceeded for hearing in respect to a counter claim by the 2nd respondent.

2. The appellants were aggrieved by the trial court’s refusal to grant adjournment and filed this interlocutory appeal raising the following grounds namely: -i.That the learned magistrate exercised her discretion improperly by failing to grant adjournment.ii.That the learned magistrate misdirected herself by failing to talk into account all the circumstances relevant to the appellants’ application for adjournment.iii.That the learned magistrate’s decision to summarily dismiss with costs the appellant’ suit was unfair, unjustified and amounted to a denial of justice.iv.That the learned magistrate misdirected herself and caused a failure of justice when she ordered the respondents to proceed ex parte.v.That the learned magistrate erred by failing to apply properly principles applicable to adjournments.vi.That the denial of adjournment and proceeding ex parte was oppressive, capricious and untenable.

3. In their submissions dated February 21, 2022 and June 25, 2022 done through learned Counsel MM Kimuli & Co Advocate, the appellants, contend that this appeal is a plea for an opportunity to be heard. They submit that they have a right to be heard and had sought for an adjournment on the material date because their Counsel was away in Mombasa High Court before Employment and Labour Relations Court.

4. They contend that the hearing date was fixed at the Registry and that when the appellants Counsel learnt about the date from Mr Kalili, he made communications indicating that the date was not convenient.

5. They claim that the hearing date of June 12, 2018 was fixed on June 5, 2018 a date they claim was properly taken as a mention date to take a suitable hearing date. They claim that the said date was altered at the Registry and has drawn the attention of this court to the alterations made without any signature on May 29, 2018.

6. They submit that the trial was made aware of the fact that their advocate Mr Kimuli was unavailable on June 12, 2018 because he was held up in Mombasa but the trial court declined to adjourn the trial. They fault the trial court contending that there is no justification for taking a drastic measure against them.

7. They have urged this court to intervene to allow them an opportunity to be heard.

8. This appeal is opposed by both respondents. The 1st respondent has opposed this appeal through written submissions by JK Mwalimu advocate.

9. The 1st respondent submits that the appellants have rebelled against the church and mobilized some members to forcefully take over the church premises and that attempts to remove them have been frustrated by myriad of applications aimed at delaying trial.

10. They submit that the trial court decided to consolidate the 2 suits and did away with applications opting instead to deal with the main suit in order to save time.

11. The 1st respondent contends that the hearing date of June 12, 2018 was taken by consent with Miss Mati holding brief of Mr. Kimuli.

12. They faults the conducts of Vundi Advocate for walking out of court when the trial court declined adjournment and ordered the matter to proceed.

13. They submit that the trial court cannot be faulted for declining adjournment pointing out that the prevailing circumstances were adverse to further adjournments. They denies the appellants’ claim that the trial court acted in a capricious and oppressive manner when it declined adjournment.

14. They submit that the transfer of the Magistrate who conducted trial does not bar any other Magistrate from taking over the matter and proceeding to write judgement on the basis of the evidence on record.

15. The 2nd Respondent has equally opposed this appeal through written submissions dated June 12, 2020 done through Kalili & Co Advocate.

16. The 2nd appellant has reiterated that the hearing date of June 12, 2018 was taken by consent. It points out that when the trial court declined adjournment sought by Ms. Vundi Advocate, the said advocate walked out leaving the respondents alone in court and thereby leaving the appellants’ case unprosecuted.

17. He contends that the trial court exercised its discretion properly by disallowing the application for adjournment. It faults the appellants for reluctance to have the matter heard pointing out that on 5th September, 2017 the appellants were reluctant to take a hearing date despite a ruling that had been made by the trial court that a hearing date be taken.

18. The 2nd respondent submits that M/s Vundi advocate was in the same firm with Kimuli and that there was no reason why she could not proceed. It submits that adjournment is not given as a matter of course but it should only be given when good reasons are advanced.

19. He submits that the appellants should not be complaining of denial of chance to be heard when they had the opportunity but failed to take it. It contends that the dismissal of appellants’ case was fairly justified and served the ends of justice.

20. This court has considered this appeal and the response. There is no doubt that the case filed in the lower court was protracted and highly contested. The size of the file from the lower court is evidence to that fact. The matter being a religious dispute ought not to have gone that far and should have been resolved through alternative dispute resolution mechanisms. But it was not. Having said that, this appeal raises only one issue which is whether the trial court exercised its discretion well when it declined to allow an application for adjournment.

21. Granting of an adjournment as correctly put by the 2nd respondent’s counsel is not a matter of course or automatic. A court should be given sufficient reasons for adjournment. Some litigants, an indeed some advocates have mistakenly taken adjournments for granted and have made wrong assumptions that it is a right of a litigant. It is not. A party who want an adjournment should convince the court why he/she should be granted an adjournment. A grant of an adjournment is purely a discretionary matter for the trial of course to be exercised in a judicious manner with a view to serving the ends of justice.

22. I have gone through the record of proceedings and in summary it is apparent that after protracted push and pull over interlocutory applications the trial court fixed the matter for mention on September 5, 2017 with a view to fixing a hearing date for the main suit after ‘‘deferring’’ applications filed. On September 5, 2017, the appellants counsel expressed reluctance to taking of a hearing date on grounds that they had filed an appeal in respect to the court’s ruling ‘‘deferring’’ applications. The trial court however, put its feet down and fixed the matter for hearing on November 14, 2017. On November 14, 2017, it appears the court did not sit for one reason or the other and the appellants went to the registry and took out a mention date on February 27, 2018 with a view to taking a hearing date.

23. On December 5, 2017 before the scheduled mention on February 27, 2018, the defence or respondents counsel had the file placed before the trial court and sought the case to be heard on priority. The trial court in the presence of all counsel eventually agreed to convert the mention slated for February 27, 2018 to be a hearing instead of a mention.

24. The record reveals that on February 27, 2018, the 1st defendant’s counsel was absent and the reasons given for the application for adjournment, was the fact that the 1st Respondent’s Counsel incidentally was away in Mombasa held up in the High Court. The trial court obliged and fixed the hearing for May 29, 2018 when unfortunately, the trial court was not sitting.

25. The record show that on 25th May, 2018, parties went to the registry and the matter fixed for September 5, 2018. There are some unexplained alterations on the proceedings indicating the change of hearing into a ‘‘mention for direction’’ on June 5, 2018. On June 5, 2018, the trial court directed the matter to be heard on June 12, 2018 with each party being allocated 30 minutes. It is also apparent from the record that Miss Mati Advocate held brief for Kimuli.

26. The proceedings of August 12, 2018 is now the subject of this appeal. The appellants counsel, Mr. Kimuli through M/s Vundi applied for adjournment on grounds that Mr Kimuli advocate was held up in Mombasa before the Employment and Labour Relations Court handling Civil Case No 264 of 2016.

27. The trial court declined the application for adjournment upon which the Counsel holding brief for Kimuli staged a walk out which was quite unfortunate and ought not to have happened. This court appreciates that advocates at times find themselves in a corner when things or decisions do not go their way but walking out should be the last thing in their mind. that act of walking out of a court is strange because it is an abhorrence for an officer of court to walk out. Having said that I will leave the matter at that. What is significant is that in the midst of all that, the matter proceeded and the appellants’ case was dismissed for want of prosecution.

28. The trial court exercised its discretion in declining the application for adjournment and this court as an appellate court rarely interfere with such discretion unless it is shown that the trial court failed to take into account a relevant fact or took into account extraneous matter such as the unbecoming conduct of the Counsel holding brief. It is true that a court should exercise its discretion in a manner that serves the end of justice at the same time locking out a party from the seat of judgement should be done sparingly and only in obvious cases where it is apparent that a litigant is out to abuse the process of court to delay a matter unreasonably.

29. I have had a look at the reasons advanced by the appellants in seeking for adjournments particularly the fact that their counsel was engaged in another matter in Mombasa in the Employment and Labour Relations Court. In my considered view that reason was not unreasonable. The fact that the case number of the matter Mr Kimuli was handling was cited as case No 264/2016 showed that the application was on the face of it made in good faith.

30. It should not be lost that on 29. 2.2018, the trial was adjourned because of the same reason of unavailability of Counsel but this time it was 1st respondent counsel who as I have said above, was incidentally also held up in Mombasa over a case but at that time the trial court was not given the details of the case Mr Mwalimu was handling in Mombasa. The appellants’ counsel notified the trial court that his client was in court and if that litigant was present and actually heard the reasons for adjournment, it is difficult for him to understand why the court declined to adjourn the matter that time round when their counsel was also held up in Mombasa. Certainly what is good for the goose is equally good for the gander. The trial court in my view failed to take that issue into consideration and in the end made a decision that had the effect of locking out a party in protracted case such as the one pending at the trial court. Granted, justice should always not just be done but it must be seen to be done.

31. While I am inclined to exercise my appellate jurisdiction in favour of the appellants because the pendulum of justice swings in their favour, they should be cautioned that they should proceed with speed and prosecute their case when they get another chance.

32. I have noted that the trial court deferred pending application instead of marking them as dispensed with a view to expediting the hearing and determination of the main suit. I respectifully say so because to defer a matter means to postpone it to a later date but dispensing with it means waiving or dropping it altogether. I find that the trial court was right to dispense with the applications in order to hear and determine the matter finally and with expedition.

33. I also find that opening window for the appellants will not unduly prejudice the respondents. At the end of the day justice will be served and every party will go home after having been heard or given an opportunity to be heard.

34. In view of the foregoing, I find merit in this appeal. The decision of the trial court made on June 12, 2018 discussing the appellants’ case is set aside together with all the consequential orders. The appellants will however pay costs of this appeal. I will direct that the lower court files be taken back forthwith before the duty court for a mention with a view to fixing a suitable hearing date before a court with requisite jurisdiction to determine. I will also direct that the matter be given priority by all the parties/counsels in this matter and this trial court for the interest of justice given the interim orders in place.

DATED, SIGNED AND DELIVERED AT KITUI THIS 18TH DAY OF OCTOBER, 2022. HON. JUSTICE R. K. LIMOJUDGE