[2014] KEHC 650 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 507 OF 2005

KENYA COMMERICIAL BANK LIMITED…………………PLAINTIFF

VERSUS

TITUS KILONZO MUTUA

T/A MBWALA AGENCIES…………………………………1ST DEFENDANT

HELLEN NGINA KAATINE……………………………….2NDDEFENDANT

MBWALA AGRO SUPPLIES LTD…………………………..3RD DEFENDANT

GLADYCE LANGAT………………………………………..4TH DEFENDANT

CHRIS A. ABELE T/A

ABELE & CO. ADVOCATES ……………………………..5TH DEFENDANT

ERIC MUTISYA MUSYOKI …………………………….....6TH DEFENDANT

JOSHUA IKITAI KIMEU …………………………………..7TH DEFENDANT

PAUL MUTHOKA MBOLE ………………………………..8TH DEFENDANT

DAVISMAINA MAHINDA ……………………………….9TH DEFENDANT

CYRUS N. MBUGUA……………………………………..10TH DEFENDANT

PRADIP KUMAR VASANT BHAI PATEL ……………….11TH DEFENDANT

MUHINI HARDWARE LIMITED …………………………12TH DEFENDANT

CO-OPERATIVE BANK OF KENYA LTD ……………….13TH DEFENDANT

BARCLAYS BANK OF KENYA LTD ………………………14TH DEFENDANT

STANBIC BANK KENYA LTD …………………………….15TH DEFENDANT

AFRICAN BANKING CORPORATION LTD …………….16TH DEFENDANT

STANDARD CHARTERED BANK KENYA LTD…………17TH DEFENDANT

RULING

This matter comes before me listed for a Hearing. Mr. Mwangi for the Plaintiff informs me that all the Defendants have been served and that he is ready to proceed. I informed the Parties that I would hear the matter and any Applications at 11. 30 today. The Court was informed that Mr. Titus Kilonzo Mutua, the 1st Defendant wished to make an application to adjourn the matter to enable him to seek legal representation.

The Plaintiff’s Counsel asserts that he is ready to proceed and the matter has been ongoing for a number of years. The underlying proceedings being in relation to a fraud committed by the employee of the bank and that primarily the dispute is between the Plaintiff Bank and the 1st Defendant. Following the preliminary indication that an adjournment would be sought, Counsel for the Plaintiff sought to impress upon the Court that the Defendant has not been very active and that the application has been made on previous occasions. The matter is listed for 2 days today (10th November 2014) and 13 November 2013. Mr. Okoth holding brief for Mr. Chacha Odera asks the court to excuse their presence as they have talked to the Plaintiff’s Counsel about the matter.

The Coram for the Hearing was slightly different from previously on that day and it is recorded.

The Defendant represented himself and makes his application very eloquently. He states that he is seeking an opportunity to obtain representation so that he can participate fully in the proceedings. He says that he has identified counsel to act and that he needs to source funds in order to finance his representation. He is in the process of doing so but has not yet been completely successful. He says that the matter is complicated and being a layman he may not understand the complications and legal interpretations and therefore requires a legal representative to assist him. He says that due to the technicalities it has taken time to find Counsel. He said that there was a lawyer on record. That Counsel withdrew while the Defendant was in prison. He is only requesting some reasonable time and he acknowledges that he has been served. He asks the Court to show compassion and humanity in its decision.

He informed the Court that he would require two months which would enable his chosen representative to come up to speed with the case and there would be no necessity for any further adjournments. Over the course of the Hearing, the 1st Defendant was willing to disclose the name of the Counsel who he had approached.

In order to shorten the proceedings for more effective submissions, I invited the Parties to inform me which of them was not opposed to the adjournment before I dealt with objections. Mr. Okoth (for 17th Defendant) agreed to the adjournment being given. Mr. Mbindio for the 20th and 21st Defendants accepted that it is a complex matter. He neither objects nor agrees to the adjournment. Ms. Maragori, for the 16th Defendant shares the same sentiments, as does Mr. Kassam for the 14th Defendant as their [claim] is against the 8th Defendant. This allowed greater time for the hearing of any objections.

Mr. Mwangi for the Plaintiff Opposes the Application for Adjournment and strongly objects. He informed the Court that the Defendant has not had representation for a considerable period. The suggestion being that he has not considered it necessary earlier and therefore the court should question whether the Defendant truly requires the assistance he now seeks. There have been several requests made, including a request before Hon Mr Justice Ogola. Counsel states that the matter has been before the court for very many hearings and it has been difficult to proceed. When the 1st Defendant was in prison it proved difficult to procure his attendance. He says, the Defendant has been out of prison for about 1 ½ years. He was served with the Notice of Hearing on 26 September 2014 and it appears that no considerable effort was made on that.

Very helpfully, Mr. Mwangi set out the background of the case saying that assets have been frozen or restricted. There was a concern that over time the value of the assets has gone down. In particular there are two motor vehicles the value of which is going down over time. Mr. Mwangi accepted the proposition that although the vehicles were depreciating in value, other assets may have appreciated in value.

Mr. Mwangi points to the decrees already granted with the argument that in the circumstances, strictly speaking an adjournment does not assist the Defendant and while he appreciates the Defendant has a right to seek legal representation that right is more important in criminal proceedings and less pronounced in civil proceedings. The way the Defendant is taking the issue is as a shield. There are considerable costs incurred in obtaining the Hearing as there are many parties to serve, amounting to as many as 13 Affidavits of service each time which adds to the costs of the proceedings.

Plaintiff’s Counsel goes on to say that if the Court is minded to afford the Defendant a chance, in other words to grant the adjournment, this should be a final chance and allocate a specific hearing date as there is the additional prejudice that the witness need to attend thereby incurring further costs and expenses and it is difficult to ensure their attendance on each occasion the hearing is adjourned.

Although the Plaintiff’s position was not supported entirely, there was a consensus that if the Defendant is granted an adjournment, it should be a final chance.

In response, the Defendant says that this is the first time he has asked the court to adjourn. He says the issues are complicated and he asks the Court to act with humanity and allow his application for an adjournment. He says he understands what counsel saying and assures the Court that the time he needs is 2 months and he will not ask for additional time. Defendant is hoping to instruct Mr. Mutiso.

Mr. Mwangi asks for a new Hearing date to be fixed at this stage.

In relation to the Coram, some of the Parties request judicial continuity, in particular as Hon Mr. Justice Ogola has already recused himself in relation to this matter.

After Hearing argument and submissions on the adjournment, the matter was adjourned for handing down of the Ruling on 13th November 2014. As it seems that some Counsel may have difficulty attending on the 13th, given the short notice, only the Plaintiff and the Defendant were and are requiredto attend, the other Parties may not attend if they have professional obligations that prevent them from attending.

After Hearing from the Parties present, the indication I gave was that in view of the circumstances of the Defendant, it seemed likely that an adjournment was the best way forward.

The Law and Procedure

The starting point is the Constitution of Kenya. Article 48 provides “The State shall ensure access to justice for all persons …..” Under Article 50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court….. . In relation to criminal proceedings this extends to the right to have adequate time and facilities to prepare a defence (Article 50(2)(b) and the right to choose and be represented by an advocate,….. (Article 50(2)(g)). Although that particular requirement is not expressly extended to civil proceedings, it is inevitable that there will be circumstances where the objective of a fair trial can only be satified where there is equality of arms of between the parties, for example where the subject matter requires specialist consideration.

“An adjournment is granted by a court in the exercise of its judicial discretion. Such discretion will be based on the reasons given by the party applying and on the particular circumstances of the case (Sultan Hardware Ltd –vs- William Murithi Kimani & Another, Civil Appeal No.150 of 2012)”. The elements the trial court should take into consideration in dealing with question of adjournment are the adequacy of reasons given for the application, how far, if at all, the other party is likely to be prejudiced by the adjournment, and how far such other party can be suitably compensated by the order against the applicant to pay costs (Job Obanda – vs- Stagecoach International Services Ltd & Another, Civil Appeal No.6 of 2001).

Under the Civil Procedure Rules 2010, Order 17 (1) provides that “Once a suit is set down for hearing, it shall not be adjourned unless a party applying for the adjournment satisfies the court that it is just to grant the adjournment".

From the foregoing, it is clear that the Court has a wide discretion as to whether or not to grant an adjournment and the terms on which such an adjournment should be granted, including directions as well as any further listings for Hearing.

Having heard from the Defendant, I am satisfied that the interests of justice are best served by granting the Defendant the adjournment he seeks limited to a period of two months for the express purpose of enabling him to obtain legal representation.

Therefore I grant the adjournment for a period of two month from today’s date. As the other parties have confirmed they are ready to proceed and the Defendant has assured the Court that no further adjournments will be necessary, no further directions are necessary.

The Matter should be listed for Hearing on 25th and 26th February 2014.

Costs Reserved.

Hearing listed: February 25th & 26th 2014.

DATED, Signed and Delivered at Nairobi this 13th Day of November, 2014.

FARAH S.M AMIN

JUDGE