[2022] KEHC 16124 (KLR)

Ketno Sacco & 2 others v Namu (Civil Appeal E025 of 2022) [2022] KEHC 16124 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16124 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E025 of 2022

LM Njuguna, J

December 7, 2022

Between

Ketno Sacco

Applicant

and

Sospeter Ogero Taracha

1st Appellant

Mary Wanjiru Mugwe

2nd Appellant

and

Jane Ngugi Namu

Respondent

Judgment

1. The appeal herein arose from the ruling of Hon Gichimu WJ (SPM) delivered on March 29, 2022, in Runyenjes SPMCC No 61 of 2018, in which suit, the respondent sued the appellant claiming general damages for pain and suffering and special damages in the sum of Kshs 3,550/= plus interest at the prevailing court rate.

2. The respondent’s cause of action was premised on an accident that allegedly occurred on or about January 14, 2018 when she was lawfully travelling in motor vehicle registration number xxxx from Kyeni heading to Karurumo along Ishiara – Kawanjara road at Karurumo area when the said motor vehicle was negligently, recklessly and/or carelessly driven at a high speed without any due care, regard and/or attention by the 1st defendant, his authorized driver that it lost control, veered off the road and overturned causing a road traffic accident whereby the plaintiff sustained serious injuries.

3. When the matter came up for the hearing of the defence case on the June 22, 2021, the appellants were not ready to proceed and their application for adjournment was disallowed and a list of documents that they had filed were expunged from the record for having been filed out of time. Following the said ruling, the appellants filed an application dated January 24, 2022 challenging the same but which was also dismissed hence the appeal herein.

4. Being dissatisfied with the said ruling, the appellants filed the appeal herein in which they have listed ten (10) grounds of appeal in the memorandum of appeal filed on April 11, 2022. A perusal of the grounds of appeal reveals that the appeal is on the issue that the trial court without considering the repercussions the ruling would have on the appellants, dismissed an application dated January 24, 2022 wherein the appellants had sought to reopen their case.

5. The respondent filed the preliminary objection dated October 11, 2022 on the grounds that the appeal was filed without leave of the court, that it was filed out of time and that the ruling and order appealed against was not included in the record of appeal. The court gave directions that both the preliminary objection and the appeal be heard together by way of written submissions.

6. The appellants submitted that the memorandum of appeal, and the record of appeal were properly filed and hence this court was urged to consider the same in determining the appeal herein; the appellant placed reliance on the case of Law Society of Kenya v The Centre for Human Rights & Democracy & 12 Others [2014] eKLR. It was further submitted that the trial court erred in dismissing the said application and as such, the said order infringed on their right to a fair hearing. Reliance was placed inter alia on the cases of Martha Wangari Karua v IEBC Nyeri Civil Appeal No 1 of 2017andPhillip Chemwolo & Another v Augustine Kubede (1982-88) KAR 103 at 1040. In regards to costs, it was submitted that the same follows the event, reliance being placed on Section 27 (1) of the Civil Procedure Act. In the end, this court was urged to allow the appeal herein.

7. The respondent on the other hand submitted that the preliminary objection should be upheld for the reason that the appeal herein has been filed out of time and without the leave of court. Reliance was placed inter alia on the cases of Isaac Mbugua Ngiarachu v Stephen Gichobi Kaara [2021] eKLR and Stephen Juma v Sprocer Awuor Rabote [2022] eKLR. The respondent also submitted that the appellants did not annex in the record of appeal, the ruling and /or the order being appealed against. Submissions were further made that the ruling being appealed against has been overtaken by events and as such, the court herein cannot therefore grant the orders sought. That the appellants did not seek for stay of the judgment by the lower court and an order to reopen the lower court case. The respondent relied inter alia on the cases of United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] KLR and Nina Mweu T/A Sassma Farm v Muus Kenya Limited & Another [2015] eKLR. In the end, it was contended that the appellants have not placed any relevant material before this court to demonstrate that the decision of the trial court was wrong and as such, the appeal herein ought to be dismissed.

8. The court has considered the grounds of appeal, the submissions by both parties on the preliminary objection and the appeal, and it thus forms the view that it has been called upon to determine whether the preliminary objection or appeal have merits.

9. The court shall first proceed to determine the preliminary objection that the appellants filed the appeal herein out of time and without the leave of court.

10. Section 79G of the Civil Procedure Act, stipulates that:'Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal.'

11. This court has perused the record, the ruling herein was delivered on March 29, 2022 while the memorandum of appeal herein was filed on April 11, 2022. In view of the above provision, I find and hold that the appeal herein was filed within the prescribed time.

12. One of the provisions that the court must always bear in mind while dispensing justice is Article 159(2)(d) of theConstitution; in respect of which, the Supreme Court held thus in Raila Odinga v Independent Electoral and Boundaries Commission & 4 Others [2013] eKLR:'The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast in stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and requirements of a particular case, and conscientiously determine the best outcome.'

13. The same line of thinking has been adopted in numerous other provisions; no doubt with the objective of ensuring that parties are afforded the opportunity to ventilate their grievances on appeal as opposed to restricting access to justice, particularly where no prejudice would be suffered by the respondent. Indeed, in Banco Arabe v Bank of Uganda [1999] 1 EA 22, that:'The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered.'

14. On the issue that the order being appealed against was omitted in the record of appeal contrary to Order 42 Rule 23 (4) of the Civil Procedure Rules, I am guided by the finding of the Court of Appeal in the Case of Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata Civil Appeal No 63 of 2016 [2017] eKLR where it was held:'Starting with the first issue, it is true that the record of appeal before the first appellant court at the time of filing did not contain the decree appealed from. This omission brought into focus the provisions of Order 42 Rule 2 of the Civil Procedure Rules'The Respondent did not take advantage of this provision to subsequently file a certified copy of the decree so that the appeal proceeded to hearing in the absence of the decree appealed from. Was this omission fatal to the appeal? The Appellant thinks so as according to him the requirement is couched in mandatory terms. The Judge did not agree with him reasoning that:'The word 'decree' has been defined by the Civil Procedure Act Cap 21 to include judgment. Infact, the Civil Procedure Act as provided at Section 2 that the judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of a judgment may not have been drawn up or may not be capable of being drawn up'.This is the essence of the proviso to the definition of the term 'decree'. According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court; consequently, he reasoned the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record.We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon court to go for substantive justice as opposed to technicalities. Further, holding otherwise would have run counter to the overriding objective as captured in section 1A and 1B of the Civil Procedure Act. Finally, one would ask what prejudice the Appellant suffered with the omission of the certified copy of the decree in the record of appeal. We do not discern any.'[Also see Kenya Women Micro Finance Ltd v Martha Wangari Kamau [2020] eKLR.

15. Whereas it is true that the appellant failed to annex the order, he did attach a copy of the ruling which would suffice in the absence of a certified copy of the order. Further, it has not been shown what prejudice the respondent suffered by the failure to annex a certified copy of the order. I therefore find that the appellant’s failure to annex a certified copy of the order cannot be a basis for striking out of the appeal.

16. Turning to the substantive issues herein, the appellants have faulted the trial court for dismissing its application dated January 24, 2022. I have perused the said application together with record in totality and I find that the plaintiff/respondent prosecuted its case and finally closed the same on June 22, 2021. The defendants/appellants applied for two adjournments in a row and finally on December 16, 2021 when the matter came up for defence hearing, the appellants informed the court that they had filed a supplementary list of documents. In addition, they applied for adjournment as they did not have their witnesses that day.

17. The respondent opposed the application for adjournment for the reason that, that is the third time the matter was coming up for hearing. The respondent also urged the court to expunge the list of documents from the record arguing that they were filed without the leave of the court.

18. The learned magistrate considered the oral application and the response by the respondents but declined to grant the application for adjournment and further made an order expunging the appellants list of documents as the same were filed without the leave of the court. It is these orders that prompted the appellants to file an application dated January 24, 2022 in which the appellants sought an order to set aside the proceedings of the December 16, 2021 and an order to re-open the defence case.

19. The learned magistrate upon hearing the application, delivered a ruling on March 29, 2022 dismissing the same. It will be noted that prior to the filing of the supplementary list of witnesses and documents, the plaintiffs had already presented their witnesses and had closed their case, the matter being fairly old.

20. The trial magistrate has been faulted for not provoking Sections 1A, 1B of the Civil Procedure Act and Article 159 of theConstitution and further for applying wrong principles of law and thereby arriving at a wrong decision. Of importance to note is the fact that the Civil Procedure Rules, 2010 provides how pre-trial directions and hearings should be conducted. The Rules require parties to furnish their evidence in advance before the commencement of the trial as per the provisions of Orders 3, 7 and 11.

21. Under Order 3 Rule 2, when filing a suit, the plaintiff is required to file a verifying affidavit, list of witnesses, statements of witnesses (excluding expert witnesses), and copies of documents to be relied upon at the trial. However, there is a proviso that the written statements may, with the leave of the court, be availed at least 15 days prior to the pre-trial conference envisaged under Order 11 of the Civil Procedure Rules.

22. The same applies to a defendant when filing a defence and counterclaim (if any). The relevant provision is Order 7 Rule 5. I think it is best that I set it out in full, for it is the provision that ought to apply to the application herein. The same is drawn as follows :-Order 7 Rule 5 Documents to accompany defence or counterclaim.The defence and counterclaim filed under Rules 1 and 2 shall be accompanied by—a.An affidavit under Order 4 Rule 1 (2) where there is a counterclaimb.A list of witnesses to be called at the trialc.Written statements signed by the witnesses except expert witnesses andd.Copies of documents to be relied on at the trial.Provided that the statements under sub rule (c) may with leave of the court be furnished at least fifteen days prior to the pre-trial conference under Order 11.

23. It can be seen from the above that both the plaintiff and defendant are required to furnish their evidence when filing their pleadings. It is only with the leave of the court that documents may be supplied later, at least 15 days before the pre-trial conference. In practice, the courts do conduct the pre-trial conference through a mention, where parties confirm that they have complied with Order 11 and that they have exchanged the requisite documents.

24. The provisions of Orders 3 and 7 are meant to curb trials by ambush. The objective is to make clear to the other party, the nature of evidence that he shall face at the trial. In the same breadth, the Rules do not state that such party will be barred from filing of his documents but the same should be done with leave of the court. But theConstitution under Article 50 (1), provides that every party deserves a fair trial, and it is arguable, that a trial will not be a fair trial, if a party is ambushed with documents that he/she did not anticipate.

25. On the ground that the court denied the appellants an opportunity to ventilate their defence, it is trite that the court has a constitutional mandate to ensure that a trial is fair and therefore retains the power to disallow one party from tabling evidence that was not provided to the other party as contemplated by the rules. [See the decision of the Supreme Court in the case of Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions Nos 3,4 and 5 of 2013 (2013) eKLR].

26. It therefore translates to the fact that where such evidence can be adduced without causing undue prejudice to the other party, the court ought to allow the application, so as to allow such a party, the opportunity to present its case in full. The court may consider various factors including, but not limited to, the availability of the witness, the discovery of a new document, and the stage of the proceedings at which the additional evidence is sought to be introduced. If for example, the trial has not started, little prejudice may be caused to either party if one is permitted to introduce additional evidence. The prejudice to the other party no doubt increases as the trial progresses.

27. Nonetheless, it is up to the court to weigh the circumstances of each case, and determine whether it will be in the interests of justice to allow such evidence to be tendered, though outside the time frame provided by the rules.

28. The question that arises is whether it will be in the interests of justice, given the circumstances of this case, to allow the appellant to introduce the alleged list of documents as earlier prayed in the lower court considering that the plaintiff had earlier closed her case and the defendant having adjourned the matter at least two times before filing a supplementary list of documents and further seeking for an adjournment when the defendant’s case was to proceed for hearing on the material day.

29. The Supreme Court of Uganda considered circumstances under which an adjournment would be granted. [See Famous Cycle Agencies Ltd & 4 Others v Masukhalal Ramji Karia SCCA No 16 of 1994 [1995] IV KALR 100]. Also see Odunga J (as he then was ) in the case of Mbithuka Titus v Jackline Mutindi [2020] eKLR where he held the view that:While the Appellant contends that there is a usual practice that a first application for adjournment ought to be granted, I am not aware of such practice and if there is such a practice it is not grounded in law. Any application for adjournment whether the first or the tenth must be grounded in law.

30. In the case herein, the appellants cry foul that the trial court erred by failing to rectify an inadvertence or excusable mistake or error that could have been put right by the payment of costs and further forcing the appellants to close their case; of importance to note is the fact that an application for adjournment must be grounded in law as already noted. That notwithstanding, the appellants herein had previously been granted two adjournments and on the day when the matter was supposed to be heard, counsel for the appellants stated that its witnesses were not available and as such, an adjournment was again sought. In my view, it cannot be said that the trial court erred in denying the appellants an adjournment given that no good reason was given.

31. In the present era, trial by ambush is no longer acceptable and any party who does so, will be doing so at the risk of being locked out of relying on its documents or not being allowed to call his witnesses to prosecute and prove its case; at the very least or having its defence struck out. In the case of Topen Industries Ltd v Afrolite Industries Ltd Civil Application No Nai 334 of 2000 the Court of Appeal held that where a time limit is given by the Court for complying with the order for discovery and inspection and the same is not complied with until well beyond the date fixed by the Court, the filing of the said documents and without extension or obtaining the consent of the opposite party is unjust. Again in Menze and Others v Matata [2003] 1 EA 151 it was held that although a litigant who has failed to comply with a Court order for discovery should not be precluded from pursuing his claim or setting up his defence, where the failure to comply is due to willful disregard of the order of the Court and is a great impediment in the Cause and the cause of justice in the matter, the litigant may be precluded from setting up his defence.

32. Having gone through the record, it is my humble view that given the circumstances herein, allowing the appellants to reopen their case would greatly prejudice the plaintiff/respondent as the same would violate the provisions of Article 50(1) of theConstitution.

33. For the above reasons, I am not inclined to allow the appeal herein and the same is dismissed with costs to the respondent.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………………….……….for the Appellant…………………………………………….for the Respondent