[2022] KEHC 14142 (KLR)

Ngare & another v Mulweye (Civil Appeal E42 of 2021) [2022] KEHC 14142 (KLR) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14142 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E42 of 2021

RB Ngetich, J

October 18, 2022

Between

Joseph Kabiru Ngare

1st Appellant

Ephraim Wachira

2nd Appellant

and

Philiph Mutange Mulweye

Respondent

(Being an appeal against the judgment of Honourable C. K. Kisiangani SPM in Ruiru PMCC no. 374 of 2019 delivered on 4th March 2021)

Judgment

1. The appellant in the current suit were the defendants in the primary suit filed by the Respondent dated 22nd October 2019, seeking judgment against the appellants for the sum of Kshs. 508,786/= together with interest.

2. The appellants filed a joint defence dated 14th July 2020, blaming the Respondent for the cause of the accident for losing control of his motor vehicle and in the process rammed into the appellant's motor vehicle.

3. The court record shows that at the close of pleadings, the suit was set down for hearing and when the matter came up for hearing on 17th December 2020, the Respondent called a total of three (3) witnesses and the matter was adjourned to 4th February 2021 at 2. 00 pm at the request of counsel for the Respondent.

4. On 4th February 2021 at 2. 52 pm, the parties and their advocates were not present. The trial court noted the date was taken by consent of both counsels, and the trial court went ahead to close the plaintiff and the Defence case and directed the parties to file written submissions within fourteen (14) days.

5. Despite the directions being served on both counsels, no submissions were filed and the trial court proceeded to pronounce its judgment on 4th March 2021 in favour of the Respondent. The court held the appellants 100% liable for the accident jointly and severally and entered judgment for the sum of Kshs. 474,751/= plus costs and interest.

6. Aggrieved by the court decision, the appellants filed the memorandum of appeal citing four (4) grounds as follows:a.The trial court erred in law and the fact in ordering the parties to close their respective cases in their absence and to proceed to write a judgment when the law is very clear on the consequences of non-attendance by the parties.b.The trial court erred in law in condemning the defendants without giving them a chance to table their defence.c.The trial Magistrate erred in law and in fact in holding the defendants wholly liable for the accident yet no evidence on how the suit occurred was tendered by the Plaintiff.d.The trial court erred in law and fact in disregarding the application filed by the plaintiff/Respondent explaining none attendance of both parties yet the application was properly filed in court and served upon the appellant herein.

7. The appellants urged the court to set aside the judgment of the trial court and substitute with an order dismissing the plaintiff's suit for non attendance or order retrial.

8. Directions were taken to canvass the appeal through written submissions.

Appellant’s Submissions 9. Counsel for the appellant filed submissions on 20th June 2022 and submitted that the four (4) grounds raised in the appeal revolve around the proceedings of the court on 4th February 2021 in the absence of the parties which led to the impugned judgment.

10. Counsel submitted on two points, the first point being the consequences of non-attendance by a plaintiff. Order 12 rule 1 of the Civil Procedure Rules provides that the court has the power to dismiss the suit when neither party attends the hearing. The plaintiff had not testified and was meant to testify on a material day. The court erred in closing the plaintiff and the defence case in the prevailing circumstances.

11. Further, Rule 7 allows the trial court to set aside an order dismissing a suit for non-attendance. Counsel submitted that the trial court failed to set aside the orders despite the application by the plaintiff and proceeded to deliver judgment. Counsel further submitted that the spirit of Order 12 rule 1 is clearly the way forward in a dismissal or an adjournment but not the closure of the plaintiff’s and the Defendant's case.

12. On the second issue, counsel submitted that the Plaintiff in the trial court had not proved his case to warrant the trial court to deliver judgment. The plaintiff had not testified in court and was scheduled to testify on 4th February 2021.

13. In conclusion, the counsel for the appellants urged the court to consider the special circumstances and find the trial court proceeded in error in closing the plaintiff and defendant's case and order for a retrial of the suit.

Respondent’s Submissions 14. Counsel for the Respondent filed submissions on 5th July 2022 and submitted that the appeal as filed lacks merit and that Order 12 Rule 1 of the Civil Procedure Rules provides for the dismissal of the suit for non-attendance by the parties but the trial Magistrates exercised her infinite wisdom and elected not to dismiss the suit but closed both parties’ cases and directed the matter to be canvassed by way of written submissions. The decision was judicious as a dismissal of the case was a more draconian measure.

15. Counsel submitted that the appeal on record as an appeal on the judgment and not an appeal on the court order and ruling of 4th February 2021. The varying or setting aside of the judgment /decree of 4th March 2021 is inconsequential. The court orders of 4th February 2021 have not been challenged. The appellant has not sought leave of the trial court to appeal as per Order 43 Rule 1 (2).

16. Further, counsel submitted that the provisions of Order 12 rule 7 are inapplicable as the suit was not dismissed and there was no application by the applicant to set aside the judgment. The orders to close litigation do not fall under the orders which are appealable as of right. Order 43 1(3) of the Civil Procedure Rules provides as follows: -‘’ An application for leave under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order ‘’

17. In conclusion, Counsel submitted that the above provision is mandatory and the instant appeal fails on both fronts and therefore should be dismissed with costs to the Respondent.

Analysis and Determination 18. It is trite that a litigant who files a case is under a duty to take positive steps at all times to progress the same. The suit in the trial court was filed in October 2019 and the judgment was delivered on 4th March 2021. From the record, the matter was only fixed for hearing on two occasions. On the first occasion, the Respondent called a total of three (3) witnesses who were cross-examined by the appellant; the respondent was to call more witnesses and the matter was adjourned to 4th February 2021, at 2. 00 pm. On this date, parties did not attend court.

19. There was no specific reason advanced as to why the parties or their advocates failed to attend court.

20. The appellant has urged this court to set aside the trial court’s judgement and substitute the same with an order dismissing the suit or order for a retrial.

21. That court’s discretion should be exercised judiciously so as not to cause an injustice to either party. Although the court is geared towards clearing the backlog and finalizing cases, the matter having been filed in October 2019, both parties failed to attend court only once. Both the appellant and respondent were not given a chance to present their case before the trial court. Though no plausible reason has been given by either party for the non-attendance, I do find the decision by the trial court to close case for both parties was lethal and amounted to injustice.

22. An appellate court will only interfere with the discretion of the trial court if it is satisfied the findings of the lower court were based on wrong principles or is a misapprehension of the evidence.

23. Article 50 of the Constitution of Kenya provides that every person has the right to a fair hearing. In light of Article 50, it is just to give the parties the right to be heard and present their case.

24. Further, Article 159(2)(d) of the Constitution of Kenya, 2010 provides that justice shall be administered without undue regard to procedural technicalities. It is only fair and just to have the suit proceed to full hearing and determination on merit

25. Under Order 12 Rule (1) of Civil Procedure Rules consequences of non-attendance by either party to a suit, the court may proceed and dismiss the suit.

26. I note from the record that after hearing of plaintiff’s three (3) witnesses on 17th December 2020, she adjourned the hearing to 4th February 2021. Parties failed to attend court and at 2. 52 p.m, she closed both the plaintiff’s and defence’s case.

27. This was the next hearing after hearing of plaintiff’s evidence. The plaintiff was to call one more witness. No evidence was adduced by the defence to counter the plaintiff’s evidence. Whereas I do agree that cases should proceed for hearing without delay, allowing all parties opportunity to be heard assists the court in arriving at a fair and just determination. In my view, the trial Magistrate’s decision to close both the plaintiff and defendant’s case was drastic and harsh in the circumstances.

28. From the foregoing, I find the trial Magistrate erred in proceeding to deliver her judgment without giving the appellant a chance to present their case. I find the appeal is merited.Final Orders: -1. The appeal is hereby allowed.2. The judgement delivered on 4th March 2021 and all consequential orders or decrees are hereby set aside.3. The plaintiff’s and defendant’s case to be reopened and the case to proceed from where the plaintiff’s case had reached by any other Magistrate other than Hon. C.K Kisiangani Senior Principal Magistrate.4. No orders as to costs.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 18TH DAY OF OCTOBER, 2022. ..................................RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantNo appearance by parties