[2020] KEHC 4467 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 73 OF 2018

COMMERCIAL TRANSPORTERS LIMITED..............................1ST APPELLANT

JOHN MBURU KIGE.......................................................................2ND APPELLANT

-VERSUS-

ELIJAH NGIGE KURIA........................................................................RESPONDENT

(Being an appeal from the Judgment and decree of Senior Principal Magistrate Hon. E. K. Usui,

delivered on the 12th of February 2018 in Nairobi Milimani CMCC no. 10524 of 2007)

JUDGEMENT

1) Elijah Ngige Kuria, the respondent herein, a turn boy, employedbyCommercial Transporters Ltd, the 1stappellant herein was involved in a road traffic accident along Mombasa Highway at Emali on 25thApril 1997 and as a result he sustained serious injuries.

2) The respondent filed a compensatory suit before the ChiefMagistrate’s Court, Milimani vide the plaint dated 30. 11. 2007 againstCommercial Transporters LtdandJohn Mburu Kige, the 1stand 2ndappellants respectively.

3) The appellants filed a joint statement of defence denying bothLiability and the claim. The appellants also pleaded that the respondent’s claim was time-barred having been filed more than 10 years after the cause of action arose.

4) The suit proceeded for hearing before Hon. E. K. Usui on 10thOctober 2017. On the aforesaid date, the appellant’s advocate sent a colleague to hold her brief and seek for the adjournment of the hearing of the suit on account of her indisposition.

5) The application for adjournment was rejected and the hearing ofthe suit proceeded without the participation of the appellants’ advocate since the advocate holding brief had no instructions to proceed with the hearing on behalf of the instructing principal.

6) The appellants’ advocate filed an application before delivery ofjudgment and sought to have the case reopened to enable her cross-examine the respondent on the issue touching on limitation of Actions Act. The appellants’ application was dismissed on 1stNovember 2017. The appellants filed an appeal contemporaneously with an application for stay of proceedings.

7) On 12th February 2018, the trial magistrate delivered herjudgment in favour of the respondent before the determinationof the appellants application.

8) The appellants were aggrieved by the dismissal order hence theypreferred this appeal and put forward the following grounds:

a) That the learned magistrate erred in law and in fact in finding the appellants 100% liable for the plaintiff’s injuries without testing the evidence.

b) That the learned magistrate erred in law and in fact in condemning the defendants unheard by dismissing their applications numerously. In so doing the said magistrate acted contrary to the principles of natural justice which provides for the principle of audi alteram partem meaning the right to be heard.

c) That the learned magistrate erred in law and in fact by acting contrary to the Articles 10 (b) which provides that the national values and principles of governance shall bind all State Organs, State Officers, Public Officers and all persons whenever any of them

(a) Enacts, applies or interprets any law ; or

The learned magistrate also acted contrary to Article25(c ) of the Constitution of Kenya 2010 which provides the right to a fair hearing is a right that cannot be limited.

d) That the learned magistrate erred in law and in fact in ignoring the fact that the suit herein being a suit based on the tort of negligence is time barred as the same was filed on the 3rd December 2007 whereas the cause of action arose on the 26th April 1997;

e) That the learned magistrate erred in law and in fact in dismissing summarily the defendants’ advocate’s application dated 30th October 2017 to recall the plaintiff for further examination in chief and to canvass the issue of statutory limitation of time as had been expressly directed by the same court on the 28th October 2010;

f) The learned magistrate erred in law and fact in awarding damages that were manifestly high and excessive. The amount awarded was an erroneous estimate of the alleged injury. The magistrate may have acted on the wrong principle of law.

9) When this appeal came up for hearing, this court with theconcurrence of learned counsels directed the appeal to bedisposed of by written submissions. I have re-evaluated the casethat was before the trial court. I have also considered the rival submissions of learned counsels together with the authorities cited.

10) Though the appellants put forward a total of six grounds ofappeal, I am minded to take into account three main grounds in which the appellants are challenging the trial court’s conduct in refusing to give them a right of hearing.

11) It is the submission of the appellants that the trial magistrateerred by condemning them unheard by dismissing their applications in which they sought for the court’s accommodation of adjournment.

12) The appellants further argued that the trial magistrate erredwhen she summarily dismissed the appellants’ application dated 30thOctober 2017 in which they applied to recall the respondent for cross-examination on the issue touching on limitation of actions and yet the record shows it was an issue the court had directed to be raised at the hearing of the suit.

13) In response to the appellants’ submissions, the respondentargued that the appellants’ application dated 1stNovember 2017 seeking to recall the respondent for further examination was dismissed by the trial magistrate upon hearing both sides.

14) It was pointed out that the dismissal order has not beenchallenged on appeal.

15) The respondent further argued that the trial court declined tostay the delivery of judgment as requested by the appellants for the reason that there was no order from the High Court to stay delivery of judgment by the trial court.

16) I have purposely avoided to determine the grounds of appealwhich seeks to challenge the merits of the trial court’s judgment but instead concentrated on how the proceedings were conducted. It is apparent from the record that on 12thFebruary 2018, Hon. Ragot, learned Senior Principal Magistrate stated in her ruling that the preliminary objection on whether or not the suit was time-barred should be raised and determined when the suit comes up for substantive hearing.

17) It is also apparent that when the suit came up for hearing on10thOctober 2017 the appellants’ advocate sent a colleague to hold her brief to seek for the hearing of the suit to be adjourned on the basis that she was unwell.

18) The trial magistrate refused to adjourn the hearing of the suit onthe basis that there was no evidence that the appellants’ advocate was sick. The suit therefore proceeded for hearing without the participation of the appellants.

19) It is also clear from the record that the appellants appeared atthe time the suit had been fixed for judgment and sought to persuade the trial magistrate to defer the delivery of judgment and re-open the hearing of the case to enable the appellants recall the plaintiff to cross-examine him on the question as to whether or not the suit was time-barred. The trial court declined to entertain the appellants’ request and proceeded to deliver its decision.

20) With respect, I agree with the appellants that the trial courtfailed to accord them with a right of hearing. There was no cogent evidence to show that the appellants’ advocate was not indisposed when her colleague sought for the adjournment of the hearing of the suit. I am therefore convinced that the appellants were denied a right of hearing. The trial court in essence unfairly made the appellant suffer for the mistakes of their advocate.

21) It is also clear that the trial court did not make a finding as towhether or not the suit was time-barred. The issue was reserved to be determined at the time of hearing of the substantive suit.

22) When the appellants attempted to seek to re-open the hearing ofthe suit to have the issue heard and determined, the trial court flatly rejected such an invitation yet in the ruling of Hon. Ragot delivered on 16thSeptember 2010 the issue was reserved to be raised at the hearing of the substantive suit.

23) With respect, I agree with the appellants that they were unfairlydenied their constitutional right of hearing by the trial court.

24) In the end, I find the appeal meritorious and is allowed.

Consequently, the judgment delivered on 12thFebruary 2018 is set aside. This court issues an order directing the suit to be remitted back to the Chief Magistrate’s Courts, Nairobi for re-hearing before another magistrate of competent jurisdiction other than Hon. E. K. Usui (Mrs.) on priority basis.

25) In the circumstances of this case, a fair order on costs is todirect which I hereby do, that each party meets its own costs.

Dated, Signed and Delivered virtually via Microsoft Teams at Nairobi this 3rd day of July, 2020.

..........................

J. K. SERGON

JUDGE

In the presence of:

.....................................for the Appellant

...................................for the Respondent