[2022] KEHC 9865 (KLR)

Mutune v Design Forte Limited (Civil Appeal 559 of 2018) [2022] KEHC 9865 (KLR) (Civ) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9865 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 559 of 2018

JK Sergon, J

July 8, 2022

Between

Dorothy Mumbua Mutune

Appellant

and

Design Forte Limited

Respondent

(Being an appeal against the ruling and order of Honourable E.A. Nyaloti (Mrs.) (Chief Magistrate) delivered on 26th October, 2018 in Milimani CMCC no. 2024 of 2017)

Judgment

1. The appellant herein lodged a suit before the Chief Magistrate’s Court vide the plaint dated January 11, 2017 and prayed for reliefs in the nature of general and special damages plus costs of the suit and interest thereon against the appellant, arising out of an alleged breach of contract.

2. On being served with summons, the respondent entered appearance and defended the claim by putting in the statement of defence dated May 12, 2017.

3. The matter went for pre-trial and was certified ready for hearing.

4. When the parties attended court for the hearing of the suit on October 16, 2018 counsel for the appellant indicated to the trial court that they had filed a supplementary list and bundle of documents on April 27, 2018 and therefore sought leave of the court for the same to be admitted and deemed to be properly on record. The advocate for the respondent raised an objection to the oral application made.

5. Upon considering the aforementioned oral application, the trial court by way of the ruling delivered on October 26, 2018 allowed the objection made on behalf of the respondent and expunged the appellant’s supplementary list and bundle of documents from the record.

6. It is apparent that the appellant being aggrieved by the abovementioned ruling, have lodged the memorandum of appeal dated November 22, 2018 to challenge the same, by putting in the following grounds:i.That the learned trial magistrate grossly erred in law and fact by expunging from the record the plaintiff’s supplementary list and bundle of documents dated April 27, 2018 filed and served on the respondent on April 27, 2018 despite the respondent failing to demonstrate what prejudice it would suffer.ii.That the learned trial magistrate erred in law and fact by anchoring her order and ruling based on the ground that the matter was certified ready for hearing on August 14, 2017 yet the court that certified the same had no jurisdiction (pecuniary) to make such decision.iii.That the learned trial magistrate erred in law and fact by failing to appreciate that the matter was actually certified ready for hearing by a competent court on 19th July, 2018, over 3 months after the appellant had filed and served the plaintiff’s supplementary list of documents.iv.That the learned trial magistrate erred in law and fact by failing to appreciate the importance and relevance of the plaintiff’s supplementary list of documents to the merits of the case as implored by the appellant’s counsel and failing to consider that the respondent had ample time to peruse and examine the same in preparation for trial and would therefore suffer no prejudice.v.That the learned trial magistrate erred in law and fact by failing to properly apply the court’s overriding objective and failing to appreciate that the provisions of inter alia, Article 159 of the Constitution, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act which implore the court to always facilitate a process that protects the fundamentals of the rules of natural justice.vi.That the learned trial magistrate erred in law and fact by failing to understand that the provision of Order 11 of the Civil Procedure Rules was not meant to lock out the introduction of new evidence but to assist in case management and avoid unnecessary delays in conducting cases.

7. Going by the record, it is apparent that no submissions were filed on the appeal.

8. From the record, it is also apparent that the respondent did not participate at the hearing of the appeal.

9. I have considered the grounds raised on appeal and I have also re-evaluated the material which was placed before the trial court. It is clear that the appeal is challenging the decision by the trial court to expunge the appellant’s supplementary list and bundle of documents. In that case, I will tackle the six (6) grounds of appeal contemporaneously.

10. As earlier noted, the appellant had filed her supplementary list and bundle of documents on 2April 7, 2018 and thereafter sought leave of the court to have the same admitted as being properly on record.

11. The record shows that the respondent objected to the oral application for admission of the documents on the basis that the matter had been scheduled for hearing on the material date.

12. In her ruling, the learned trial magistrate reasoned that the appellant had not given reasons for the late filing of the aforementioned documents and without leave of the court, and hence concluded that the actions by the appellant amounted to an abuse of the court process and moved to expunge the documents from the record.

13. Upon my study of the record, I observed that the suit had initially been certified ready for hearing on August 14, 2017 upon close of pre-trials.

14. Upon my further study of the record, I observed that it later came to be discovered that the trial court at the time lacked the pecuniary jurisdiction to entertain the suit and hence the matter was placed before the Chief Magistrate for re-allocation/directions.

15. The record shows that when the matter came up in court on July 19, 2018 re-allocation was done and the matter was again certified ready for hearing. It is when the matter was scheduled for hearing that the subject of the supplementary list and bundle of documents arose.

16. On the one hand, it is apparent from the record that the appellant through her advocate had on more than one occasion previously indicated that all the necessary documents had been filed at the pre-trial stage and hence the certification of the suit for hearing. It is not in dispute that the supplementary list and bundle of documents was therefore filed following the close of pre-trial conference.

17. Further to the foregoing, I note from the record that when the parties attended court for the scheduled hearing on October 16, 2018 the appellant’s advocate did not give any explanation for the late filing of the supplementary list and bundle of documents and without first seeking leave of the court; rather, he only wished for the documents to be admitted on record.

18. The law is clear that the courts have a mandate to ensure that parties undergo a fair trial which does not entail ambush by way of tendering evidence at the trial stage. This position was stated by the court in the case of Johana Kipkemei Too v Hellen Tum [2014] eKLR when it held thus:“…both plaintiff and defendant are supposed to furnish their evidence when filing their pleadings. It is only with the leave of the court that documents may be supplied later, but this needs to be at least 15 days before the pre-trial conference contemplated in Order 11 Rule 7…the Constitution 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 allowed to hide his evidence and ambush the other party at the hearing.The court has a constitutional mandate to ensure that a trial will be 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.”

19. Be that as it may, on the other hand, upon my re-examination of the record, I did not come across anything to indicate the manner in which the respondent would stand to be prejudiced in the event that the supplementary list and bundle of documents is admitted on record.

20. I also note from the record that the supplementary list and bundle constitutes a series of emails which the respondent did deny receiving prior to the hearing date.

21. Upon considering all the foregoing circumstances and the fact that parties are yet to call evidence at the trial, I am of the view that going by the provisions of Article 159 (2) (d) of the Constitution on ensuring substantive justice without undue regard to procedural technicalities, and in the absence of any indication of prejudice to be suffered by the respondent, it will be a fair exercise of my discretion to disturb the finding made by the trial court.

22. The upshot therefore is that the appeal has merits. It is hereby allowed. Consequently, the ruling delivered by the trial court on October 26, 2018 is hereby set aside and is substituted with an order admitting the appellant’s supplementary list and bundle of documents dated April 27, 2018 as being properly on record.

23. In the circumstances of the appeal, there shall be no order made on costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ............................J. K. SERGONJUDGEIn the presence of:………………………………for the Appellant………………………………for the Respondent