[2022] KEHC 1514 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. 07 OF 2019

JOANNES MUTUA.............................APPELLANT

-VERSUS-

CHARLES NZUKI SENG’ETE...... RESPONDENT

(Being an appeal from the original judgment of Hon. E. Muiru in Kilungu Senior Principal Magistrate’s Court SPM Case No.171 of 2016 pronounced on 20th December, 2018).

JUDGMENT

1. In a ruling delivered on 28th December, 2018 the learned trial magistrate declined to allow a request for an adjournment sought by counsel for the appellant (defendant at the trial court), which was sought in order to file a statement from a witness who had not yet filed a witness statement. The court also ordered the defence case to proceed.

2. Shortly thereafter, in a further application for adjournment made by the same advocate for the appellant, claiming that none of their witnesses were in court that day, the magistrate declined to adjourn the case and ordered that the defence case be deemed as closed.

3. Aggrieved by the above rulings of the trial court, the appellant has come to this court on appeal through counsel on the following grounds –

1. The learned trial magistrate erred in law by failing to afford the appellant and his witnesses an opportunity to be heard and ventilate his case on merit.

2. The trial court erred in law and fact in failing to consider the dictates of substantive justice and fair hearing as enshrined in the Constitution of Kenya, 2010.

3. The magistrate erred in law and fact by closing the defence case yet the defence had witnesses in court ready to testify on the defendant’s behalf.

4. The learned magistrate erred in law and fact by refusing to grant the defendant and his witnesses another day/chance, to be able to show up in court and testify.

5. The learned trial magistrate erred in law by exercising his discretion wrongly and misdirected herself while considering the application for adjournment and refusing to allow the present and/or available defendant’s witnesses to testify.

6. The trial magistrate further erred in law and fact by failing to appreciate, consider and take into account material factors in reaching the conclusion that she did in the impugned ruling.

7. The learned magistrate erred by making a decision that was capricious, whimsical, high handed, without proper basis and against the weight of evidence and the facts on record.

4. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions of both the appellant and the respondent. I note that both M/s J. Maluki & Company for the appellant andM. Ndwiga & company for the respondents relied on decided case authorities.

5. In my view, it is not contestable that the trial court, or any trial court for that matter, has discretion to grant or decline to grant a request for adjournment. The written law and procedure applicable are clear on this, that the court can and indeed has discretionary powers to fix another date for a matter pending in court. The principles on which proper exercise of discretionary powers of the court are determined were considered in the case of Mbogo –vs- Shah (1968) E.A 93.

6. I have perused the proceedings in the trial court. In this particular case, the defence case was adjourned on a number of times since 6th September 2018 when it was to commence. It was adjourned to 04/10/2018, then 27/11/2018, then 20/12/2018 when the magistrate made the impugned ruling in contest herein.

7. I note that on the material day, the first reason given for adjournment by counsel for the appellant was to enable the appellant file an additional witness statement, from a witness who had so far not filed such a witness statement. The trial magistrate declined the request and I think rightly, as firstly, such witness statement should have been filed before directions were given under Order 11 of the Civil Procedure Rules. Secondly, the said statement was now sought to be filed after the respondent (plaintiff) had already closed their case and as such it was an ambush late in the day, and meant to prejudicethe respondent by introducing new matters too late and in doing so, give undue advantage to the appellant. Such unfair ambushes in my view are not consonant with the principles of fair hearing elaborated in Article 50 of the Constitution of Kenya, 2010.

8. With regard to the magistrate closing the case of the defence thus shutting the appellant from tendering evidence, indeed Article 50 and 159(2) (b) of the Constitution of Kenya 2010 emphasize dispensation of substantive justice by all courts. Though the grounds of appeal and submissions of the appellant suggest that witnesses of the appellant were present in court that day that is not what is reflected in the record of proceedings. It is clear from the record of the proceedings that after the request for filing an additional witness statement was disallowed, Mr. Atingo for the appellant stated as follows –

“I seek leave to appeal said ruling. I also seek for an adjournment because my witnesses are not in court”.

9. It cannot thus be said that witnesses of the appellant were present in court and were denied a chance by the magistrate to testify. In my view the appellant or the appellant’s counsel is not being forthright in alleging that the appellant’s witnesses were present in court that day and were denied a chance to testify, and instead the case was closed by the court.

10. Having found as above however, since it is not in dispute that the matter was taken over by another advocate for the appellant who had to make fresh contacts with witnesses, in my view, thetrial court should have allowed an adjournment for the appellant to avail witnesses, and thus there is sufficient reason for this court to interfere with the discretionary power exercised by the magistrate to disallow the adjournment, just for the purpose of hearing the appellant’s witnesses, in line with the provisions of Article 50 and 159(2)(b) of the Constitution of Kenya 2010 which require courts to be inclined to administer substantive justice, rather than determine matters on technicalities.

11. I thus set aside the orders of the trial court in disallowing the adjournment and closing the appellant’s case. I reopen the defence case, and order that the appellant will have to call their witnesses who should testify in the trial court by end of October this year, as the case is a 2016 case, and in default, their case will stand closed, and the trial court will give its judgment on the basis of the evidence on record. In this regard, I order that the case be mentioned before the trial court on 29th March 2022.

12. Costs of the appeal will follow the decision of the case in the magistrates’ court.

DELIVERED, SIGNED & DATED THIS 15TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

………………………………….

GEORGE DULU

JUDGE