[2022] KEHC 16971 (KLR)

Marula Estates Limited v Mosire (Civil Appeal 37 of 2018) [2022] KEHC 16971 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16971 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 37 of 2018

GWN Macharia, J

December 15, 2022

Between

Marula Estates Limited

Appellant

and

Kirur Arap Mosire

Respondent

(Being an appeal from the Judgment and Decree of the Chief Magistrate's Court at Naivasha in CMCC No. 482 of 2014 delivered by the Hon. Bidali (CM) on 11th July 2018)

Judgment

The Appeal 1. The instant appeal arises from a ruling of the Honourable Chief Magistrate K. Bidali in Naivasha CMCC No. 482 of 2014 delivered on the 11th day of July, 2018 denying the appellant an adjournment to call further witnesses with the court proceeding to close the defence case.

2. The appellant being aggrieved with the said decision, moved this court vide a Memorandum of Appeal dated the 16th day of July, 2018 seeking to have the said order set aside and be allowed to call the remaining defence witnesses.

3. At the hearing of the appeal, directions were taken that the parties canvass the appeal via way of written submissions.

4. Being the first appellate court, this court has a duty to re-examine and re-evaluate the evidence on record and arrive at its own conclusion. This position was emphasized in the case Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates[2013] eKLR (Civil Appeal No. 161 of 1999) in the following manner:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

5. See also: Selle &another vAssociated Motor Boat Company Ltd &others [1968] EA 123.

Background 6. The respondent’s claim was based on alleged injuries sustained while on duty at the appellant’s premises.

7. The respondent proceeded with his case on the 24th day of January, 2018. PW1 testified and the Counsel for the Respondent sought an adjournment to enable them call an expert witness who examined the Respondent. The application was not opposed by the Appellant who on the said date was also granted leave to file a medical report.

8. On the 28th day February, 2018, the matter came up for further hearing of the respondent’s case, Dr. Obed testified with respect to the respondent’s injuries. The respondent then proceeded to close their case. The appellant sought to have the matter adjourned as they did not have witnesses on the said date.

9. On the 11th day of July, 2018 when the matter came up for defence hearing, the appellant had called one witness to testify and sought for an adjournment to enable them bring their next witnesses. The Doctor who was to testify for the appellant was indicated to have been fully engaged somewhere. The application was strongly opposed by the respondent on grounds that the date had been taken by consent. Further, it was the respondent’s contention that only one witness recorded their statement and calling another witness would be sealing loopholes.

10. Parties filed written submissions.

Appellant’s Submissions 11. The appellant faulted the trial magistrate for holding that it was building its case as it progresses which was likely to cause would delay in the matter which had been in court for four years.

12. It was the appellant’s case that the four years pendency of the matter was solely at the instance of the respondent and not the appellant. Further, the appellant intimated that having been granted leave to file the medical report by its doctor prior to the close of the defence case, the same report having been filed on the 21st day of January, 2018, they were not seeking to call a party who was a stranger to the proceedings.

13. The appellant was of the position that the said witness was crucial to its case owing to the fact that one of the issues the trial court would be tasked to determine is the degree of injuries and the commensurate award.

14. It was further the submissions of the appellant that the witness to be called being an expert witness who already had their document for production on record, they were not required to have recorded any statement and as such, no prejudice would have been suffered by the respondent. it was the first time the said witness had failed to attend court and the appellant considering the doctor as a crucial witness would have been given an opportunity to have him testify.

15. The appellant submitted that the Trial Court failed to have consideration of the overriding objective as provided for in sections 1A and 1B of the Civil Procedure Act. Further, the trial court was faulted by the appellant for violating its right to fair hearing as provided for by the Constitution in article 50.

16. The case ofElishaphan Omolo Nyasita v John Ojowi Onuko [2015] eKLR was cited by the appellant. The Court had this to say:“In the court’s view in the face of the defendant’s filed defence, the court will be denied the opportunity of evaluating the totality of the evidence if the defendant is shut out and not allowed to present his evidence. The defendant equally will feel that he has not been accorded justice if he is not allowed to present his evidence. While I agree reopening the case to enable the defendant to testify will prolong the finalization of the case to the prejudice of the plaintiff, my view is the ends of justice will be better served if the defendant is allowed to present his evidence.”

17. The appellant also relied on the case of Selina Vukinu Ambe v Cyllus Godfrey Onyango [2020] eKLR where the court held:“21. From the foregoing, I am of the view that whereas the applicant did not bring any credible evidence to support his explanation on his absence from court on the date of hearing, the interest of justice requires me to consider the impact of locking his evidence out of the case, taking into account the fact that the claim by the respondent is of a defamatory nature. Having done so, I am of the view that in the interest of substantive justice and in realization of the applicant’s constitutional right to a fair hearing, I will exercise my discretion in granting the applicant an opportunity to defend his case.”

18. Further, the court was invited to consider the case of Daniel Kimeli Kiprono &another v Hosea K Kemboi & 2 others (2018) eKLR where it was held:“I have considered the application and do find that this is a matter that the court should exercise its discretion judiciously. I do not intend to deny the defendant access to the seat of justice as the reasons given by the defendants’ advocate for his failure to attend court for hearing at 8. 30 a.m. are understood by this court that is, he was not aware that the court had changed its mode of operation, thus from hearing suits after mentions and applications to hearing suits at 8. 30 am before mentions and applications and therefore, when the defence counsel came to court the suit had been dismissed.The upshot of the above is that the defence case is hereby re-opened to allow the defendant testify and produce evidence and call witnesses.”

Respondent’s Submissions 19. The respondent urged the court to dismiss the appeal with costs. It was the Respondents submissions that the power to grant or deny an adjournment was discretionary in nature and would be exercised depending on the reasons presented and within the confines of Order 17 Rule 1 of the Civil Procedure Rules.

20. Reliance was place on the case of Bernard Kamau Mbugua v Khimji Karshan Chhabhadia & 2 others[2021] eKLR where the court quoted the below cases as follows:“37. In Green vNorthern General Transport Co Ltd (1970) 115 SJ 59, Lord Denning MR (with whom Edmund Davies and Megaw LJJ agreed) held:

"If by refusing an adjournment an injustice would be done, the judge erred in point of law if his decision was unjustified. If there was a material witness who was not available or whose presence was desirable the judge should grant an adjournment provided that any injustice so caused could be compensated in costs." 38. In TeinazvWandsworth London BC [2002] EWCA Civ 1040 ("Teinaz"), the court held:

“A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court or to the other parties. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment."

21. The respondent made reference to various occasions when the matter was adjourned at the instance of the appellant as follows;i.On the 11th day of May, 2015, the matter was adjourned by Counsel for the appellant as he wished to enjoin a 3rd party.ii.On the 9th day of December, 2015, the matter was adjourned by Counsel for the appellant as he was yet to receive the 2nd Medical Report.iii.On the 28th day of February,2018, the matter was adjourned by counsel for the appellant to enable him call his witnesses.iv.On the 11th day of July, 2018 the appellant availed one witness and sought an adjournment to call two witnesses and further informed the court that the doctor was fully engaged somewhere else.

22. It was the respondent’s submission that the appellant’s Counsel on record having failed to indicate the names of the witnesses he intended to call and whether their statements were on record, further failing to indicate which doctor he intended to call and how he was fully engaged, thecourt judiciously exercised its discretion to deny the adjournment. The respondent therefore submitted that the court acted rightly not to warrant an adjournment and also relied on the case of Bernard Kamau Mbugua (supra) to stress this position:“43. Moreover, the court takes judicial notice of the fact that there is a huge backlog of cases in Kenya. Judicial officers are duty bound to reduce the backlog. In doing their best they can to achieve this, while ensuring justice is seen to be done to all parties to a suit, the courts should not be unnecessarily pulled back by numerous adjournments by parties to matters. Matters should be adjourned for good reasons to be recorded. Where there appears to be none or that, a party is abusing the court’s discretion and process by seeking unnecessary adjournments, the judicial officer is obligated to make orders as will be just in the circumstances. Closing or dismissal of party’s case is one such just order.”

23. The respondent urged the honourable court to dismiss the Appeal.

Analysis and Determination 24. I have accordingly considered the evidence on record and the parties’ rival submissions. The court is tasked with determining whether to set aside orders arising from the discretionary powers of the trial court to deny an adjournment to the appellant. In Mbogo &another -vs- Shah(1968) EA 93 at 96, the Court of Appeal stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

25. Order 17 Rule 1 of the Civil Procedure Rules requires, as a general rule, that hearing of suits once commenced continue from day to day. It stipulates;“(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.”

26. In the case of Japheth Pasi Kilonga & 8others –vs-Mombasa Autocare Ltd[2015] eKLR the Court of Appeal sitting at Malindi held that;“Balancing between the need for efficiency and expediency on the one hand and the need to accord all parties before it, a fair hearing, the court erred in failing to balance the scales of justice on the side of the appellants bearing in mind the factors we have enumerated earlier, namely that the dispute involved land and many families who claimed adverse possession, both sides of the dispute had equal shares of adjournment, the appellants had complied with all pre-trial requirements, and the reasons proffered for the failure of the appellants’ advocates to attend court were not frivolous.”

27. I have perused the record and note the following attendances:i.On the 11th day of May, 2015, the matter was for mention before the Trial Court when the Appellant sought leave to enjoin a third party and conceded to the respondent’s costs. The matter was not given a next date.ii.On the 9th day of December, 2015, a date was fixed in the registry by both parties for mention before the trial court on the June 20, 2016. iii.On the 20th day of June, 2016, the matter came up for mention and the appellant sought time to have the 2nd medical report on record. The matter was stood over and referred back to the registry for fixing a hearing date.iv.Both parties appeared before the registry on the 14th day of November, 2016 and fixed the matter for hearing on the 24th day of January, 2018. The same meant that the matter would be inactive for a period of over 12 months.v.The Respondent sought an adjournment on the 24th day of January, 2018 upon PW1 testifying. The same was granted.vi.On the 28th day of February, 2018, PW2 testified and the Respondent closed its case. The Appellant sought for an adjournment so as to call two witnesses.vii.On the 17th day of July, DW1 testified and the Appellant sought an adjournment to call two witnesses. He informed the court that the doctor was fully engaged somewhere. The same was objected to by the respondent who indicated that only one witness had recorded a statement and the appellant was seeking to seal loopholes. The appellant’s response was that the witness had been mentioned. The court declined the appellant’s request for adjournment and stated that the same would cause delay for a suit that had been in court for four years. Further, the court stated that the alleged witness though having been listed, there was no witness statement on record.

28. I have considered the foregoing and find that the trial court cannot be faulted for locking out the intended witness by the appellant whose statement was not on record. Thetrial court acted judiciously in ensuring that the respondent would not be ambushed in trial and cushioned the probable event of the appellant filling in gaps which might have come up when DW1 testified.

29. On whether the appellant was deserving of an adjournment, I find that the trial court erred in disallowing the same. The refusal to grant the same was that there would be delay in the matter which had been before court. As highlighted in the foregoing paragraphs, the first time the matter was set down for hearing was on the 24th day of January, 2018 since its filing on the 4th day of September, 2014. Indeed, the matter never saw a day in court for over 12 months between the 14th November, 2016 and 24th January, 2018. The same is a substantial delay caused by both parties. Further, the respondent equally sought for an adjournment on the 24th day of January, 2018 so as to enable him call PW2 who was a doctor.

30. The nature of the claim is one that entails general damages for injuries sustained as a result of an accident for which one party blames the other for negligence. It is certain that in the event an award is to be made, the nature of injuries will be a critical area of consideration. One of the witnesses the appellant intended to call when they sought an adjournment was a doctor. His medical report was filed before any of the respondent’s witnesses testified. Counsel for theappellant also intimated to the trial court that he was unable to secure the attendance of the said doctor for reasons that he was fully engaged elsewhere. The respondent did not raise an issue with the reason advance but only challenged the calling of the other witness whose statement was not on record.

31. In view of the foregoing, I find that the trial court did not find a balance on the scales of justice and accord the appellant afair hearing. It failed to exercise this discretion judiciously, more so having regard to the fact that both parties had equally contributed to the delay of the matter. Furthermore, the prejudice on the respondent’s part would have been compensated by costs.

Disposition. 32. For reasons I have given above, the appeal succeeds and I order as follows:i.The trial court’s decision dismissing the Appellant’s suit for want of prosecution is hereby set aside.ii.There shall be no order as to costs as both parties contributed to the trial.iii.The appellant shall ensure that the suit is fixed for hearing within 60 days from the date of delivery of this judgment.

33. Orders accordingly.

Dated and Delivered at Naivasha this 15th day of December, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Mburu for the Appellant.2. Ms. Amboko for the Respondent.