[2022] KEHC 593 (KLR)

Kangethe & another v Nyairo (Civil Appeal 269 of 2019) [2022] KEHC 593 (KLR) (Civ) (13 June 2022) (Judgment)

Neutral citation: [2022] KEHC 593 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 269 of 2019

CW Meoli, J

June 13, 2022

(Being an appeal from the judgment of D.W. Mburu, SPM Delivered on 3rd May 2019 in Nairobi CMCC No. 8910 of 2017)

Between

David Kangethe

1st Appellant

Simon Njangiru Kuria

2nd Appellant

and

Dennis Nyangincha Nyairo

Respondent

(This was an appeal from the Judgement of D.W Mburu SPM delivered on 3/5/2019 in Nairobi CMCC 8910 of 2010)

Judgment

1. This appeal emanates from the judgment delivered on 3rd May 2019 in Nairobi CMCC No. 8910 of 2017. The suit was commenced by a plaint filed on 15th December 2017 by Dennis Nyangicha Nyairo, the plaintiff in the lower court (hereafter the Respondent) against David Kangethe & Simon Njangiru Kuria, the defendants in the lower court (hereafter the Appellants). The claim was for damages in respect of injuries sustained by Respondent in a road traffic accident on 22nd March 2017. It was averred that the 1st Appellant was the driver of motor vehicle registration number KBQ 793J as an agent of and for the benefit of the 2nd Appellant, the registered owner of the said vehicle. It was further alleged that on the material date, the Respondent was alighting from motor vehicle KBQ 793J at Hamza/Madaraka stage when the 1st Appellant so negligently drove, managed and or controlled motor vehicle KBQ 793J that it run over the Respondent’s leg as a consequence of which the Respondent suffered injury, loss and damage.

2. The Appellants filed a joint statement of defence denying the key averments in the plaint and liability. Alternatively, the Appellants pleaded contributory negligence against the Respondent. The suit proceeded to full hearing during which only the Respondent adduced evidence. In its judgment, the trial court found in favour of the Respondent and held Appellants jointly and severally liable at 100%. Judgment was thus entered against in the sum of Kshs. 1,419,550/- made up as follows:a.General damages Kshs. 1,200,000/-;b.Future Medical Expenses Kshs. 120,000/-;c.Special Damages: Kshs. 99,550/-.

3. Aggrieved with the outcome, the Appellants filed a memorandum of appeal dated 22nd May 2019 and subsequently filed an amended memorandum of appeal dated 8th July 2020 challenging the decision of the trial court on the following grounds: -“1. That the learned trial magistrate erred in law and fact by delivering judgment on 3rd May 2019 when there was an ongoing stay of further proceedings in the High Court on the same matter.2. That the learned trial magistrate erred in law and in fact by encouraging the Plaintiff to proceed ex parte and close both the Plaintiff’s and Defendant’s case while the defence had sought a copy of court’s ruling for purposes of lodging an Appeal.3. That the learned trial magistrate erred in law and fact by finding the application for adjournment to refer the Plaintiff for re-examination by the Appellants doctor as lacking merit despite the Appellant having made the request prior to the hearing date.” (sic)

4. Directions issued for the appeal to be canvassed by way of written submissions. A perusal of the Appellants’ submission filed after the Respondent’s submissions reveals that the submissions relate to the Appellants’ memorandum of appeal dated 22nd May 2019. The submissions address quantum of damages and make no reference to the grounds relied in the amended memorandum of appeal.

5. On his part, the Respondent’s counsel took issue with the Appellants’ failure to comply with court’s directions on filing of submissions. He complained that it was prejudicial to the Respondent, because as at filing of his submissions, the Appellants had neither filed nor served their submissions upon the Respondent as had been directed by the court. Submitting on the substantive appeal it was argued that by dint of the amended memorandum of appeal, the Appellants had abandoned their initial appeal on the issue of quantum of damages.

6. Citing the decision in South British Insurance Co Ltd v Samiullah(1967) E A 659 and Order 42 Rule 3 of the Civil Procedure Rules, counsel asserted that it is trite that once pleadings are amended the original pleading ceases to represent a party’s case, as the amended pleading takes effect retroactively from the date of the original pleadings. Thus, the court was urged not deal with the Appellants’ submissions on quantum. Concerning ground 1 of the amended memorandum of appeal, it was argued that neither the record of appeal nor the supplementary record of appeal shows any attempt by or order in favour of the Appellant to stay proceedings before the trial court.

7. Submitting on ground 2 the Respondent’s counsel contended that the trial court did not encourage the Respondent to proceed with the hearing of the suit, but rather having rejected the Appellants’ application for adjournment ordered the hearing to proceed having whereupon counsel for the Appellants opted not to participate and left the court room. Counsel cited the case of Din Mohammed v Lalji Visram(1937) IV EACA 1 to assert that the on account of the foregoing, the trial proceedings were not taken ex parte as suggested by the Appellants.

8. Lastly, counsel argued that an appeal concerning the refusal of an adjournment can only lie with the leave of the court; that the Appellants had not exhibited an order granting them leave to appeal from the interlocutory order issued on 12th March 2019 when the matter proceeded for hearing. Invoking the provisions of section 27 of the Civil Procedure Act, counsel urged the court to dismiss the appeal with costs.

9. The court has considered the amended memorandum of appeal, the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co[1968] EA 123 in the following terms: -“1. An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.2. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.3. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

10. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & another v Duncan Mwangi Wambugu[1982 – 1988] IKAR 278.

11. The Appellants’ pleadings and submissions before this court are discordant. By their memorandum of appeal dated 22nd May 2019, the Appellants had initially challenged the trial court’s findings on quantum. However, through the amended memorandum of appeal dated 8th July 2020, the Appellants sought to challenge the trial court’s order issued on 12th March 2019 when the suit came up for hearing and the resultant final judgment. That notwithstanding, the submissions of the Appellants on this appeal appear to address the initial grounds of appeal. Moreover, it is pertinent to point out that the format of Appellants’ amended memorandum of appeal appears irregular, if not defective. A memorandum of appeal like any other pleading can be amended and Order 42 Rule 3 (1) and (2) provides that:“(1)The appellant may amend his memorandum of appeal without leave at any time before the court gives directions under rule 13. (2)After the time limited by subrule (1) the court may, on application, permit the appellant to amend his memorandum of appeal.”

12. As to the manner of introducing amendments, Order 8 Rule 7 of the Civil Procedure Rules provides that: -“(1)Every pleading and other document amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made.(2)All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.(3)Colours other than red shall be used for further amendments to the same document.”

13. The amended memorandum of appeal dated 8th July 2020 was properly filed and served before directions were issued pursuant to Order 42 Rule 13 of the Civil Procedure Rules. However, on the face of the pleading, no attempt was made to introduce the amendments in the manner prescribed by Order 8 Rule 7 of the Civil Procedure Rules. Nonetheless, the effect of filing the amended memorandum of appeal, was that the Appellants abandoned their initial grounds of appeal as contained in the memorandum of appeal.

14. The Court of Appeal in Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2017] eKLR in discussing the provisions of Order 8 Rule 7 observed as follows:In our view, the use of the word “shall” alone is not the decisive factor because whether the use of the word “shall” and “may” imports a mandatory or discretionary requirement depends on the context. In this case the more important question is whether the parties and the court could tell what alterations the respondents had introduced to their pleadings. The learned judge found that there was no challenge in that regard. Again, although the amended plaint was not endorsed with the date of the order allowing the amendment, there was no dispute that the court had allowed the amendment and the relevant date was 5th October 2015. The more relevant question is what prejudice these lapses have occasioned the appellant, particularly if the amendments are clear and legible as found by the trial judge.It is these kinds of technical lapses, which do not occasion any irremediable prejudice, that Article 159 (d) of the Constitution and the overriding objective in section 1A & B of the Civil Procedure Act as well as in section 3A & B of the Appellate Jurisdiction Act seek to obviate. Since the promulgation of the Constitution and the adoption of the overriding objective, the trend in the courts of this country has been to strive to sustain rather than to strike out pleadings on technicalities, which do not occasion any prejudice. In Nicholas Salat v IEBC & 6 others CA (Application) No 228 of 2013,) the majority of this Court stated:“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”(See also E Muriu Kamau & another v National Bank of Kenya Ltd.,CA No 258 of 2009 (UR180/2009)).

15. Applying the above wisdom of the superior court to this appeal, the failure on the part of the Appellant to comply with the prescribed mode of amendments may not be fatal in this instance. The issues raised in the amended memorandum of appeal arose from the trial court’s decision in the same suit from whence the initial appeal arose, and the Respondent would not be prejudiced by the said amendment.

16. That however is not the end of the matter. The Appellants in their amended memorandum of appeal pray that “the judgment of the trial court be set aside; and the case be re-opened to proceed de-novo upon re-examination of the Respondent and compliance with Order 11”. As rightly observed by the Respondent, parties are bound by their pleadings. In Associated Electrical Industries Ltd v William Okoth (2004) eKLR, Visram J. (as he was) stated:“I entirely agree with the Appellant’s submissions that parties are bound by their pleadings. The Respondents have pleaded one thing and sought to prove another. In such a situation the defendant/appellant was highly prejudiced. It sought to defend the case against it as stated in the plaint. And the case stated in the plaint was never proved”.

17. No doubt the learned Judge was echoing the words of the Court of Appeal in Galaxy Paints Company Ltd v Falcon Guards Ltd (2000) eKLR; where the court stated:“It is trite law, and the provisions of OXIV of the CPR, are clear that issues for determination in a suit generally flow from the pleadings, and unless the pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of OXXr4 of the aforesaid rules, may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court’s determination”.

18. The submissions of the Appellant relate to the initial memorandum of appeal challenging the quantum of damages in the judgment delivered on 3rd May 2019. The appeal pleaded in the amended memorandum of appeal relates to the trial court’s proceedings of 12th March 2019. On that date, according to the record of proceedings, the suit came up for hearing. Counsel for the Appellant indicated that he was was not ready to proceed with the hearing and applied for adjournment on grounds that the Respondent had not undergone a second medical examination. The application for adjournment was vehemently opposed by counsel for the Respondent. The trial court ruled that:“Application made by the defendant is made too late in the day. The Defendant was invited for pre-trial conference but did not attend. I find no merit to the application. The same is hereby declined. Hearing to proceed today at 11. 00 am.” (sic)

19. Thereafter, the suit proceeded to hearing. The interlocutory ruling on the application for adjournment is the subject of the amended memorandum of appeal. As counsel for the Respondent correctly asserted, an appeal from the refusal of an adjournment by the trial court could only lie with the leave of the court. The Appellants have not shown that in compliance with order 43 Rules 2 and 3 such leave was obtained by them prior to or after filing the amended memorandum of appeal from the interlocutory order issued on 12th March 2019. Order 17 Rule 1 of the Civil Procedure Rules provides that:“(1)Once the suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the court that it is just to grant the adjournment.(2)When the court grants an adjournment, it shall give a date for further hearing or directions.”

20. Section 75 (1) (h) of the Civil Procedure Actprovides that an appeal lies as of right from any order made under the rules from which an appeal is expressly allowed by the rules. Order 43 of the Civil Procedure Rules makes provision for appeals from orders. Orders made under the provisions of Order 17 of the Civil Procedure Rules are not included in Order 43 Rule 1 among those from which an appeal lies as of right, and the rest of the latter order provides that:“(2)An appeal shall lie with the leave of the court from any other order made under these Rules.(3)An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.(4)Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.”

21. It is trite that the question whether an appeal lies as of right or by leave goes to the jurisdiction of the appellate court to entertain an appeal before it. I associate myself with the sentiments of Sewe J, in Edith Wairimu Njoroge v Brooks Holdings Co. Ltd[2018] e KLR that where an appeal does not lie as of right from an order but only with leave, such leave “was a prerequisite to the assumption of jurisdiction by this court on appeal.”

22. In Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others[2013] eKLR the Court of Appeal held that the issue relating to the existence of the right of appeal goes to the appellate court’s jurisdiction, is a fundamental matter and that a question regarding the absence of statutory conferment of such right is not a mere technicality. The same court held in Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR, that:“Without leave of the High Court, the Appellant was not entitled to give Notice of Appeal where, as in this case, leave to appeal is necessary by dint of Section 75 of the Civil Procedure Actand Order 43 of the Civil Procedure Rules; the procurement of leave to appeal is sine qua non to the lodging of the Notice of Appeal. Without leave, there can be no valid Notice of Appeal. And without a valid Notice of Appeal, the jurisdiction of this court is not properly invoked. In short, an application for stay in an intended appeal against an order which is appealable only with leave, which has not been sought and obtained is dead in the water.”

23. Similarly, the appeal herein as presented through the amended grounds of appeal is incompetent and the appellate court’s jurisdiction was not properly invoked. Nevertheless, I venture to add, upon examination of the record, and the Appellants’ discordant submissions, that the court is of the view that ex facie, none of the grounds in the amended memorandum of appeal are made out. Accordingly, the appeal is hereby dismissed with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 13THDAY OF JUNE 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: N/AFor the Respondent: Mr. KaburuC/A: Carol