[2022] KEHC 11200 (KLR)

Mutua v Muema & another (Miscellaneous Application 23 of 2022) [2022] KEHC 11200 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11200 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application 23 of 2022

GV Odunga, J

June 7, 2022

Between

Stephen Kyalo Mutua

Applicant

and

Titus Mutune Muema

1st Respondent

Days Saints In Kenya

2nd Respondent

Ruling

1. By a Motion on Notice dated 9th February, 2022, the Applicant herein seeks the following orders:1)This Application be certified urgent, service be dispensed with thereof and the same be heard exparte in the first instance.2)That this Honourable Court be pleased to order stay of proceedings for mention for submissions slated for 15th February, 2022 pending the hearing and determination of this application.3)That this Honourable Court be pleased to order a stay of any further proceedings in Mavoko CMCC E82 of 2021 pending the hearing and determination of this application.4)That this Honourable Court be pleased to set aside proceedings of 30th November, 2021 and the Mention for submissions slated for 15th February, 2022 and order for Mavoko CMCC E82 of 2021 be re-opened and the Plaintiff/1st Respondent attend a 2nd medical re-examination and for the Defendant/Applicant to be heard and defend the suit.5)That this Honourable Court be pleased to order stay of the proceedings of 30th November, 2021 so as to allow the Applicant an equal opportunity to participate in the hearing of this Matter and cross examine the Plaintiff’s witnesses and also call in their key witnesses pending the hearing and determination of this Application.6)That the application be heard inter parties on such date and time as this Honourable Court may direct.7)That the costs of this Application be paid by the Plaintiff/Respondent.

2. The Motion was supported by an affidavit sworn by Morine Kingé, on 9th February, 2022. Unfortunately, the supporting affidavit does not disclose the capacity in which the deponent swore the same affidavit. This is important because the Court ought to know whether the facts depose to are from the deponent’s own knowledge or from information received and the sources of such information.

3. According to the deponent, on the 30th November, 2021, the matter before the trial court proceeded ex parte. It was deposed that on that day, when the matter was slated for hearing, counsel for the Applicant adjourned the matter on grounds that the 1st Respondent/Plaintiff was yet to attend a 2nd medical re-examination, facts that were well known by the 1st Respondent’s counsel on record. It was averred that though the 1st Respondent had been booked for 2nd Medical Examination with the Applicant’s doctor on 24th June, 2021, the 1st Respondent failed to attend.

4. It was deposed that that was also the first time counsel for the Applicant was praying for an adjournment of the matter and that prior to the hearing she had indicated this to the counsel for the 1st Respondent/Plaintiff. That application was however opposed by the 2nd Respondent and the Court declined to grant the Applicant an adjournment and the matter proceeded with the Respondents’ cases after which they closed their cases and the matter was then slated for submissions on 15th February, 2022.

5. It was the said proceedings that aggrieved the Applicant since the defence was closed unheard. According to the Applicant, he was apprehensive that the court might proceed to give a judgment date in Mavoko CMCC E82 of 2021 on 15th February, 2022. The applicant was further apprehensive that should the matter proceed as intended and a judgment given in Mavoko CMCC E82 of 2021, the Judgment is likely to be substantial.

6. The applicant lamented that he had not had a fair trial and was being punished for wrongs which were not of his making. It was his view that it is necessary to have the Defendant/Applicant cross examine the Plaintiff and his witnesses and further call their witnesses to adduce evidence and that the same can only be achieved if this Court grants the Defendant/Applicant leniency by staying, setting aside and/or reviewing the proceedings on 30th November, 2021, where the defence case was closed. In the Applicant’s view, unless the proceedings of 30th November, 2021, are set aside, and the 1st Respondent ordered to be re-examined, the Defendant’s/Applicant’s Application will be rendered nugatory and the Defendant/Applicant will suffer irreparable loss as the Judgment award might be too high and unreasonable since cross examination of the Plaintiff and his witnesses was not done a sum which the Plaintiff/Respondent will not be in a position to reimburse the Defendant/Applicant.

7. In his submissions the Applicant relied on Section 3A and 3B of The Motor Vehicle Third Party Risk) Amendment 2013 which states that;“No judgment or claim shall be payable by an insurer unless the Claimant had, before determination of liability at the request of the insurer, subjected themselves to medical examination by a certified medical practitioner.An insurer shall have a right to obtain or verify information from the institution which issued the documents intended to be used to prove the claim and this right shall be enforceable before judgment is passed.”

8. On behalf of the Applicant it was submitted that the failure by the Plaintiff/1st Respondent to attend the specialist re-examination is prejudicial to the Defendant as he is unable to ascertain the nature and the extent of injury suffered by the Plaintiff/Respondent which is crucial to the Defendant in his submissions for assessment of quantum. According to the Applicant though it is the duty of the Plaintiff to prosecute the suit and do so without delay, the Plaintiff has a duty to comply with legal provisions promptly in ensuring that his matter is prosecuted expeditiously and successfully. Reliance was placed on Utalii Transport Co. Ltd and 3 Others -vs- N.I.C. Bank and Another (2014) e KLR, as cited in Kenya Power & Lighting Company Limited vs London Distrillers Limited (2014) eKLR where the court held that:“It is the primary duty of the Plaintiffs to take steps to progress their case since they are the ones who dragged the Defendant to court.”

9. According to the Applicant, the failure of the Plaintiff/Respondent to attend re-examination locks out the Defendants/Applicants from filing crucial documents in support of their case in this instance the medical report which can only be prepared and filed after re-examination. Further the Applicant has a right to defend himself which is basically the essence of the Pre-trial Conference and it is in the interest of justice that they are not prejudiced to proceed with the trial without having all facts that will build their defence case otherwise this will be withholding information necessary for putting up a formidable defence if need be. It was contended that the Applicant’s Doctor is unable to confirm and assess the extent whether there was deep cut wound to the forehead, multiple bruises on the chest, multiple bruises on the abdominal wall, fracture left humerus, blunt injury to the left and blunt injury to the pelvic region and whether it is related to the accident. The re-examination therefore is crucial as it will enable the Applicant to confirm the injuries alleged by the Plaintiff in his medical report and also cross examine on the same.

10. The Applicant also relied on the case of SAS Africa General Trading Co. Ltd & another v R K M (Minor suing through mother and next Friend P M M) [2017] eKLR where Nyamweya, J (as she then was) stated that:“I find that to the extent that the Appellants are allowed by law to tender their own medical reports on a Claimant as evidence by virtue of sections 3A and 3B of the Insurance (Motor Vehicle Third Party Risk) Amendment 2013, they have an arguable appeal, and the delay in seeking to have the Plaintiff re-examined is one that can reasonably be mitigated by costs. In addition if proceedings in the trial Court are not stayed, the Appellant’s appeal will be rendered nugatory as the case therein may be heard without their evidence. This eventuality would not only prejudice the Appellants, but would also militate against the promotion of substantive justice that is now required to be dispensed by Courts under Article 159 of the Constitution. The Respondent will also have the opportunity to challenge any such new evidence in the trial Court in the event that the Appellant’s appeal succeeds, and will not be prejudiced in this regard.”

11. According to the Applicant, in essence, the orders sought herein will not occasion any prejudice to the Plaintiff/Respondent and are only sought for the just conclusion of the matter.

12. Though I directed that the Respondents do file their responses to the application, while the 2nd Respondent informed the Court that they were not filing any response, the 1st Respondent’s response is not on the file. Neither did he furnish the Court with soft copies as directed.

Determination 13. I have considered the issues raised in this application. I agree with

14. It is not in doubt that this Court has powers to stay proceedings pending appeal and this jurisdiction is derived from both Order 42 rule 6 of the Civil Procedure Rules as well the inherent jurisdiction reserved in section 3A of the Civil Procedure Act. See George Oraro vs. Kenya Television NetworkNairobi HCCC No. 151 of 1992.

15. This jurisdiction is meant to avoid a waste of valuable judicial time; prevent the court from duplication of efforts and prevent multiplicity of suits and applications being filed and where if the stay is not granted and defendant were to succeed it would have rendered the appeal nugatory. In such applications the Court aims at ensuring that the object of the application is not rendered nugatory and that substantial loss and irreparable harm is not suffered by the applicant once the Plaintiff proceeds with the suit and the appeal succeeds. Obviously the decision whether or not to grant stay of proceedings being discretionary, the application must be made without unreasonable delay. Whereas I agree that delay is neither the sole factor nor the predominant factor to be considered, I am convinced that delay is a factor that ought to be taken into account. In Re Global Tours & Travel LtdHCWC No. 43 of 2000 Ringera, J (as he then was) held that:“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matter, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

16. In my view delay in making an application where the Court is expected to exercise discretion must always be a factor for consideration since it is an equitable principle that delay defeats equity as equity aids the vigilant, not the indolent.

17. Whereas the Court in such an application may be entitled to look at the intended appeal and see whether or not the intended appeal is not frivolous so as to satisfy itself that it is not being asked to suspend the proceedings so as to frustrate the hearing and delay the expeditious disposal of the matter, care must, however, be taken to ensure that the Court does not purport to preside over the intended appeal so as to avoid usurping the powers of the appellate Court.

18. In David Morton Silverstein vs. Atsango ChesoniCivil Application No. Nai. 189 of 2001 [2002] 1 KLR 867; [2002] 1 EA 296 the Court of Appeal citing Kenya Commercial Bank Ltd vs. Benjoh Amalgamated Ltd & Another Civil Application No NAI 50 of 2001 held that it is not the law that a stay of proceedings cannot be granted but that each case depends on its own facts. In Niazons (Kenya) Ltd. vs. China Road & Bridge Corporation (Kenya) Ltd. Nairobi (Milimani) HCCC No. 126 of 1999 Onyango-Otieno, J (as he then was) held that:“Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay…should be granted.”

19. Similarly, the Court of Appeal in Wachira Waruru & Another v Francis Oyatsi Civil Application No. Nai. 223 of 2000 [2002] 2 EA 664 held that:“In an application for stay of proceeding pending appeal where the Judgement is entered in an application for striking out a defence, it cannot be gainsaid that unless a stay is granted the appeal will be rendered nugatory since if the process of assessing damages goes on and the appeal is allowed that process would be an exercise in futility.”

20. In the present case, the appeal is challenging the decision made on 30th November, 2021 by which the Court declined an application on behalf of the Applicant to adjourn the matter to pave way for second medical examination. That such a procedure is recognised in law is not in doubt. It is however my view that such steps ought to be taken at the pre-trial directions stage and not at the hearing. Where the defendant sleeps on his right to seek for second medical examination at the pre-trial directions stage, he cannot blame the Court for denying him an adjournment on the ground that the Plaintiff has never been examined when he failed to make use of the pre-trial directions to seek the same. In my view the failure by the Plaintiff to attend second medical examination may only be fatal, if at all it is fatal, when a request is made by Defendant for the purpose and the Plaintiff declines to do so. Where such a request is not made until the 11th hour, the Plaintiff cannot be blamed for objecting to the procedure if it is bound to lead to a delay in the hearing of the case.

21. In this case, Counsel for the Applicant, rather discourteously, informed the Court that in the event that the Court was intent at proceeding with the matter, she be excused and be supplied with certified copies of the proceedings. With due respect that as a thinly veiled threat that was not only unnecessary but was not the conduct expected of counsel. By the time the said threat was being made, the Court had not even made its decision on the matter. It is now alleged that the matter proceeded ex parte and that the Applicant was denied an opportunity of cross-examining the witness. If counsel decided to remove herself from the proceedings, such proceedings are not ex parte by that mere fact. In Jesse Kimani v Mcconnell and Another[1966] EA 134 & 547 it was held that:“In its more usual sense, “ex parte” means that an application is made by one party to a proceeding in the absence of the other. Thus an ex parte application is one granted without the opposite party having had notice of the application. It would not be called ex parte if he had proper notice of it and chose not to appear and oppose it.”

22. The position is however different where the counsel making the application was merely instructed for the purposes of applying for adjournment. That was the position in Jesse Kimani v Mcconnell and Another (supra) where it was held that:“Mere presence in Court by an advocate holding brief who applies for an adjournment followed by withdrawal from the proceedings is not an appearance. An application at the hearing, under whom the case is called, by a pleader on behalf of a party for the purpose of obtaining an adjournment at the hearing, upon the refusal of which the applicant withdrew, does not constitute an appearance by the party at the hearing. It cannot be seen how a pleader can be said to attend at the hearing, merely because, before the hearing begins, he comes and asks the court that there may be no hearing. The hearing does not begin till his application is disposed of.”

23. Similar view was expressed by the Court of Appeal in John Karanja Ngugi & Another vs. Erastus Amenya Ayoko Civil Application No. Nai. 155 of 1996 where it held that:“An advocate can be instructed merely to appear and make an interlocutory application and such an advocate cannot be said to have appeared within the meaning of Rule 99(1) of the Court of Appeal Rules.”

24. In this case, it is not contended that Ms Kingé who appeared for the Applicant was only instructed to apply for adjournment. As was held in in Union Insurance Co. of Kenya Ltd. v Ramzan Abdul DhanjiCivil Application No. Nai. 179 of 1998:“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on which the party not utilising the opportunity can be heard is why he did not utilise it.”

25. In other words, what the applicant is entitled to is a reasonable opportunity of being heard and once that right is availed to him and he does not utilise him, he can no longer complain of being denied an opportunity of being heard on an appeal. He can only be heard on the reasons for him not utilising that opportunity.

26. Had learned counsel for the Applicant herein who was the 2nd Defendant not decided to remove herself from the proceedings, the application for adjournment would have been made after the close of the 2nd Respondent’s case. By making a decision not to participate in the proceedings, counsel for the Applicant seemed to have deprived herself of the opportunity to represent her client.

27. That said this application is not seriously opposed. The matter is however an interlocutory appeal. Platt, JSC in Henry Bukomeko & 2 Others v Statewide Insurance Co. LtdUganda Supreme Court Civil Appeal No. 13 of 1989 dealing with interlocutory appeals expressed himself as hereunder:“It is obvious that the longer an interlocutory appeal intervenes in the trial, the greater is the risk that the trial may be prejudiced.”

28. The court of appeal in the case of Hunker Trading Company Limited v Elf Oil Kenya Limited Civil Application No. Nai. 6 of 2010 held inter alia that:“The “O2 principle” poses a great challenge to the courts in both the exercise of powers conferred on them by the two Acts and rules and in interpreting them in a manner that best promotes good management practices in all the processes of the delivery of justice. In the court’s view this challenge may involve the use of an appropriate summary procedure where it was not previously provided for in the rules but the circumstances of the case call for it so that the ends of justice are met. It may also entail redesigning approaches to the management of court processes so that finality and justice are attained and decisions that ought to be made today are not postponed to another day.”

29. In the premises, balancing the right to hearing vis-à-vis the procedural missteps, in the exercise of this Court’s supervisory powers and in order not to delay the matter further, I hereby direct that the 1st Respondent herein be availed for second medical examination within 30 days from the date of this decision. Thereafter, leave be granted to the parties to conduct further examination in chief, cross examination and re-examination if necessary.

30. The costs of these proceedings are awarded to the Respondents herein to be borne by the Applicant.

31. It is so ordered.

Ruling read, signed and delivered in open court at Machakos this 7th day of June, 2022. G V ODUNGAJUDGEIn the absence of the parties.CA Susan