[2002] KECA 155 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GICHERU, LAKHA & OWUOR, JJ.A)

CIVIL APPEAL NO. 6 OF 2001

BETWEEN

JOB OBANDA .......................................................................................APPELLANT

AND

STAGE COACH INTERNATIONAL SERVICES LIMITED ...... 1ST RESPONDENT

FRANCIS O LUOCH T/A FARAJA INVESTMENT ................. 2ND RESPONDENT

(Appeal from a ruling and order of the High Court of Kenya at Nairobi (Mr. Justice Kuloba) dated 3rd May,

2000

in

H.C.C.C NO. 3156 OF 1995)

************

JUDGMENT OF THE COURT

The only question in this appeal is whether or not the learned Judge of the superior court (Kuloba, J.) exercised his discretion judicially in refusing to set aside an order of Angawa, J. dismissing the plaintiff's/appellant's entire case against the defendant/respondent.

The facts of the case briefly stated are that on 27th October, 1992 the appellant was travelling as a fare paying passenger in vehicle registration number KAC 375H belonging to the 2nd respondent. The vehicle was being driven by an authorised driver who so negligently drove the same that it collided with vehicle registration number KXD 781 belonging to the 1st respondent. It was the appellant's case that both drivers were equally to blame for the collision of the two vehicles. Consequent to the accident, the appellant suffered serious injuries namely: fracture of the radius/ulna, fracture and dislocation of both right and left neck of femur, soft tissue injury with loosening of teeth and a head injury that resulted in loss of consciousness. On account of these injuries he filed a suit against both the respondents on 25th of October, 1995 claiming inter-alia: special damages, general damages for pain, suffering and loss of amenities together with future loss earning capacity. He was prior to this accident engaged in the business of selling stationery, soft drinks and snacks with a net earning of Ksh.12,000/= per month. He was not able to continue with the business after the accident.

Both respondents filed their statements of defence denying liability for the accident and any claims for damages against them. They each maintained that the accident was partly or solely caused as a result of the other vehicle's driver. Therefore none of the respondents was responsible for the damages sought by the appellant.

The summons for direction were not issued until 8th of May, 1997 and the case fixed for hearing for two days. The matter came up for hearing for the first time on 23rd of April, 1998 and an adjournment was sought to enable the parties to settle the issue of quantum of damages out of court. Nothing seems to have happened. Thereafter the appellant took hearing dates ex parte for the 1st and 2nd December, 1999. On 1st December, 1999 counsel for both parties appeared before Angawa, J. Counsel for the appellant indicated to the court that the appellant was travelling from Kisumu and would not be available until the following day.

The learned Judge refused to grant an adjournment and ordered for the hearing to start at 11. 30 a.m. When the court reconvened, some more time was given to enable the advocates sort out the issue of documents that had not been exchanged. This issue was not sorted out, instead, when the case was called again, Mr. Thuo, counsel for the appellant made an application for adjournment on the ground that his client, the appellant was not in court because the vehicle he was travelling in from Kisumu had broken down at Kericho, and therefore was not able to attend court and give evidence. It is not clear from the record whether counsel also said that the appellant was the only witness. What is clear, however, is that he did not request the court that his other witnesses, doctor included, be heard or that the case be adjourned to the following day. The learned Judge in exercising her discretion refused the application for adjournment and dismissed the suit for non-attendance of the plaintiff with costs to the two defendants.

Immediately after this dismissal the appellant filed an application by way of chamber summons on 10th of December, 1999 seeking for orders inter alia:

"(1) That this Honourable Court be pleased to set aside the order dated 1st December, 1999 dismissing the suit herein.

(2) That the plaintiff be at liberty to set down this suit for hearing."

The grounds upon which he sought the above orders were that he had failed to attend the hearing of this case on 1st December, 1999 because of factors beyond his control.

Secondly, that he would suffer prejudice if his suit was not reinstated and finally that the defendants would not be prejudiced by the reinstatement of the suit as they were not opposed to the adjournment of 1st December, 1999.

Both respondents filed grounds of objection in opposition to the application. They demanded that the application be dismissed as it lacked merit and that the appellant was undeserving of the exercise of the court's discretion in setting aside the order of dismissal, the appellant having not been diligent enough in the matter. Finally, that the appellant had not come to court with clean hands.

This application was fixed for hearing before Kuloba, J. It was canvassed before him and he made his ruling the subject matter of this appeal on 3rd May, 2000. The learned Judge considered the matters that were deponed to in the affidavit sworn in support of the application. The main reason advanced by the appellant was that the vehicle he was travelling in had broken down at Kericho, and therefore could not make it to court in time. That notwithstanding, he had notified his counsel of the matter immediately. The Judge was not satisfied that there was any good reason why he should exercise his discretion in favour of the applicant. In his view, if the applicant took his case seriously, he should have travelled at least two days earlier to Nairobi or boarded another vehicle instead of waiting for the one that had a mechanical problem to be repaired. The case was old, arising out of an accident that had taken place as far back as 1992 and there was no assurance that even if the matter was reopened this time round the appellant would make it to court in time. Thereby concluding that:

"For all those reasons, this is not a good case in which a court exercising its discretion judicially taking all these factors into account should grant the orders sought."

The law is now well settled as to the circumstances under which this Court will or ought to interfere with the exercise of the superior court's discretion. As was succinctly stated by Sir Clement De Lestang, V.P. in MBOGO & ANOTHER V SHAH [1968] EA 93:

"A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there had been a misjustice."

It is not for us to set aside the Judge's discretion and substitute our own simply because if we had been the trial judge we would have exercised the discretion differently. The ruling is attacked mainly on the ground that the learned Judge failed to appreciate that in the circumstances of the case, a refusal to set aside the dismissal order was prejudicial to the applicant and resulted in injustice to him. The circumstances as to why the appellant had not appeared in court in time were sufficiently explained in his affidavit in that he had boarded the bus from Kisii where he now resides and under the normal circumstances he would have been in Nairobi to attend the hearing of his case the following day. When the vehicle broke down he had made sure that his counsel was informed so that he could apply for an adjournment, which he did, but the same was refused. More importantly, he had not intended to miss the hearing of his case considering the fact that he had suffered very serious injuries due to the accident, and would no doubt still need future medical attention.

All these were matters that had been put to the learned Judge in the affidavit before him, the seriousness of the injuries that the appellant claimed to have suffered were placed before him in the form of a medical report. The appellant was a vital witness. The case belonged to him. Under the normal circumstances other witnesses, the doctor included, would only be called to support his case. Our view of the matter is that had the learned Judge considered the matter in the light of what we have stated above, he would have come to the conclusion that in refusing to set aside the order of dismissal, the appellant was definitely prejudiced. We can put it in no better terms than Croom- Johnson (J) in the case of DICK V PILLER[1943] 1 ALL E.R 627relied upon inMANUBHAI BHAILAIBHAI PATEL V RICHARD GOTTFREID [1953] 20 EACA

81 (CA.K) at page 83:

"I cannot believe that the Judge applied his mind to the possibility of an injustice resulting from the case being heard without the defendant's evidence. Had he done so he must, I think have come to one conclusion only. He would then have had to consider whether a miscarriage of justice might arise to the plaintiff if an adjournment was granted. I can find no trace in the Judge's notes of these points being considered or even discussed or whether an award of costs would not meet the case."

Similarly in this case the learned Judge completely failed to consider whether an award of costs would not have been sufficient to compensate the respondents and thereby allow the appellant to proceed with his case. We are satisfied that failure on the part of the learned Judge to consider the possibility of injustice to the appellant in having his claim entirely dismissed without trial on the ground of refusal of an adjournment is sufficient basis upon which we are entitled to interfere with the exercise of his discretion. We allow the appeal, set aside the order dismissing the application and order that the suit be reinstated for hearing in the normal manner. We order that the appellant shall pay the costs of the appeal to the respondents within 30 days from today failing which execution may issue.

Dated and delivered at Nairobi this 8th day of February, 2002.

J.E GICHERU

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

JUDGE OF APPEAL

A.A LAKHA

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

JUDGE OF APPEAL

E. OWUOR

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

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR