[2022] KEHC 10898 (KLR)

Gutu v Magondu & another (Civil Appeal 20 of 2020) [2022] KEHC 10898 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10898 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 20 of 2020

LM Njuguna, J

May 18, 2022

Between

Perterson Kariuki Gutu

Appellant

and

David Muriuki Magondu

1st Respondent

Attorney General

2nd Respondent

Judgment

1. The appellant herein lodged an appeal before this court wherein he has challenged the judgment of the trial court Hon. Gicheru, C.M delivered on October 8, 2018 and have proffered the following grounds:i)That the decision and decree of the learned chief magistrate were against the law and the weight of the evidence.ii)That the learned chief magistrate erred and misdirected himself in disregarding and dismissing the appellant’s case.iii)That the learned magistrate erred and misdirected himself on the law regarding malice and probable or reasonable cause to prosecute.iv)The learned chief magistrate erred and misdirected himself in adopting and commenting on the criminal proceedings the subject of the civil case before him; and against his legal duty, which was merely to adopt the acquittal of the appellant.Wherefore, the appellant prays for orders:i.This appeal be allowed.ii.The judgement and decree of the lower court dated October 8, 2018 be quashed and set aside.iii.Judgment be entered for the appellant as prayed in his plaint in the lower court.iv.The Honourable court be pleased to enter an award for damages as assessed by the lower court in the sum of Kshs. 500,000. 00 general damages and Kshs. 70,144. 00 special damages; or refer the case to another lower court for assessment of damages.v.Costs of this appeal and the lower court be awarded to the appellant.

2. The appeal was disposed of by way of written submissions which both parties filed.

3. It’s now settled that the role of the first appellate Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See Selle & Ano. v Associated Motor Boat Co. Ltd (1968) EA 123). The first appellate court ought not to ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings.

4. I have read through and considered the memorandum of appeal and the submissions of counsel. I have also considered the authorities referred to by each to support their legal standing in the matter. Further, I have read the record and evidence adduced thereto by the appellant before the court but most importantly, the procedure that was adopted by the trial court, in “hearing” the matter.

5. This court has perused the court record and the same shows that, when the matter came up before the court for hearing, it directed the parties to file submissions and thereafter the court came up with a determination.

6. It is trite that Order 18 of the Civil Procedure Rules (2010), Cap 21 Laws of Kenya provides for the procedure of hearing suits and examination of witnesses. The said order is very comprehensive on how a trial should proceed in court including the recording and production of evidence. Of importance to this court is Order 18 Rules 1 and 2 which provide as follows: -1. The plaintiff shall have the right to begin unless the court otherwise orders.2. Unless the court otherwise orders—(1)On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.(2)The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply.(3)After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited.

7. In view of the above provisions, can the procedure that was adopted by the parties and the trial court be said to have complied with the procedure as laid down in the Civil Procedure Rules?

8. It is of importance to note that the law provides the manner in which hearing should be carried out and even if the parties agree between themselves on how they wish the hearing to proceed, the same is a nullity since the law and practice is clearly elaborate on how the same should be done. [See Kenneth Nyaga Mwige v Austin Kiguta and 2 others [2015] eKLR].

9. In the case of Lehmann’s (East Africa) Limited v R Lehmann & Co. Limited [1973] EA 167, the court held that:“The supposed short cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision. However, if the parties to a civil suit agree to adopt a certain procedure and the judge, however wrongly permits such a course, then there is little that a Court of Appeal can do other than to seek to make the best of an unsatisfactory position"

10. In the case of Des Raj Sharma v Reginan [1953] EACA 210, the court held that there is a distinction between exhibits and articles marked for identification and that the term exhibit should be confined to articles which have been formally proved and admitted in evidence.

11. In this case, parties substantially deviated from the laid down procedure. This court is alive to the provisions of Order 11 and in particular Rule (7) which gives the court the discretion to order admission of statements without calling the makers as witnesses, where appropriate. The challenge this court has is; when a court exercises such discretion “how does it interrogate the veracity of the evidence contained in such statements which are produced without calling the makers and especially in cases where a whole trial is conducted by way of witness statements.

12. I therefore hold the view that, such a deviation from a well laid down procedure is not acceptable. [See James Njoro Kibutiri v Eliud Njau Kibutiri 1 KAR 60 [1983] KLR 62; [1975-1985] EA 220].

13. In view of the foregoing, and since the documents referred to in the list of documents were not formally produced and their veracity tested in support of the suit and given that the correct laid procedure for recording and producing of evidence as laid down in Order 18 Rules 1 and 2 was not complied with, it is my considered view that the trial court fell into error as there was no trial as contemplated by the law.

14. In the end, I hold that:i)The matter be and is hereby remitted to the trial court for hearing and determination in the manner stated hereinabove.ii)No order to costs.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE…………………………………………………for the Appellant………………………………………………for the Respondent