[2022] KEHC 2541 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CIVIL SUIT NO. 2 OF 2021

(FORMERLY NAIVASHA HIGH COURT CIVIL SUIT NO. 1 OF 2020)

(FORMERLY NAROK HIGH COURT NO. 4 OF 2015)

(CORAM: F.M. GIKONYO J.)

WYCLIFFE MWAVALI ONDARI...............................................PLAINTIFF/RESPONDENT

VERSUS

COUNTY COUNCIL OF NAROK........................................1ST DEFENDANT/APPLICANT

KESIKE OLE WOTUNI........................................................2ND DEFENDANT/APPLICANT

RULING

Case to start de novo?

[1] This Ruling springs from submissions made before me on 16/12/2021 by the legal counsels for the parties herein; Ms. Muigai for the plaintiff and Mr. Kere for the defendant. The case was part-heard before C. Meoli J sitting at Naivasha) and J.M. Bwonwonga J. sitting at Naivasha.

[2] Plaintiff’s counsel urged that the case continues from where it had reached. In plaintiff’s counsel’s view, they had given evidence which is on record, the defence can proceed with their defence and the court deals with the matter. The plaintiff’s counsel added that the defendants had approached them for settlement. They had judgment twice in default at Kericho and in Narok by Meoli J. The defence did not present their case.

[3] On the other hand, defendant’s counsel opposed the proposal for the case to continue from where it had reached. Counsel urged that it starts de novo because, in his view they can test the evidence. He pointed out that when a new judge takes over they should start de novo. He however stated that the other party can adopt their statements.

[4] In reply, Ms. Muigai opposed the application on the ground that the court is a court of record. That it has kept the record unless Mr. Kere is suggesting that the record is not genuine. She further argued that the Defendants were represented. That their doctor gave evidence and it cost them money. She therefore urged the Defendants if they felt that they would wish to cross examine their witnesses, they should do so at their costs. That also the defendants did not sue their advocates for negligence.

[5] In a rejoinder, Mr. Kere stated that they are being asked to agree to the Plaintiff’s case. He argued that they can have expedited hearing. He prayed that this court gives them a proper hearing.

ANALYSIS AND DETERMINATION.

Twists and turns

[6] The history of this case is long, characterized by twists and turns, applications upon applications, back and forth tendencies by legal counsels, complaints here and there including to the JSC. But in that chequered history, I will cite only those of discreditable incidents but relevant to the legal question before me.

Issue

[7] There is a dichotomy. The Plaintiff’s counsel urges that the case continues from where it had reached. The Defendant’s counsel was of a different view; that the court should start de novo. It therefore falls to the court for determination: -

Whether this case start de novo or continue from where it had stopped?

THE CONTEXT

i. The law

[8] Order 18 Rule 8 (1) of the Civil Procedure Rules, 2010 provides for the power of the court in dealing with evidence taken by another judge as follows: -

8 (1) Where a judge is prevented by death, transfer, or other cause from concluding the trial of a suit or the hearing of any application, his successor may deal with any evidence taken down under the foregoing rules as if such evidence had been taken down by him or under his direction under the said rules, and may proceed with the suit or application from the stage at which his predecessor left it"

[9] I should also state here that the jurisprudence coming through seems to extend, with appropriate adaptations, application of the Criminal Law principle in section 200 of the CPC across the board in furtherance of the constitutional right of fair hearing.

[10] When I consider these provisions of the law, the test should be one that facilitates fair hearing and eventually guarantees justice to the parties. The proper question would be whether any party would be materially prejudiced.

Pertinent considerations

[11] What considerations should guide the court in deciding whether to order the case to start de novo or to continue from where it had reached?

[12] The observations made by Duffus, J.A. in Mandavia –vs- Rattan Singh [1968] E.A. 146 are apt, that:

“… it seems to me that the proper test is whether the successor Judge is in as good a position as his predecessor would have been in to evaluate the evidence and submissions which have been put forward and to continue the hearing on that basis.”

[13] Section 1A of the Civil Procedure Act also provides another pertinent consideration; the overriding objective of law to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act as follows: -

1A (I) the overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).

(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act, to that effect, to participate in the process of the Court and to comply with the directions and orders of the Court.

[14] Under section 1A (3), the parties as well as their legal counsels have a statutory duty to assist the court to further the overriding objective of the Civil Procedure Act.

[15] In sum, in deciding whether or not a case should start de novo, the court should consider: -

i) Whether the successor Judge is in as good a position as his predecessor would have been in to evaluate the evidence and submissions;

ii) Availability of witnesses who have testified; may be they are not available or cannot be procured or cannot be procured except with great expense of time, money;

iii) The dictates of the overriding objective, and the principle of justice in article 159(2)(b) of the Constitution; inter alia delay and cost effect of the order;

iv) The prejudice that will be suffered by the parties; balancing of rights is important here;

Applying the test

[16] In this case, the proceedings have been typed. I have perused them and I do not see any particular or special difficulty in evaluating the evidence recorded by the previous judges.

[17] Counsel for the plaintiff submitted that the witnesses cannot be procured unless at great expense. She submitted that the defendant was given an opportunity to present their case but they engaged in delaying endeavors. This case is old as it was filed about 9 years ago. In those circumstances, procuring witnesses may be with great difficulties and expense, and in other cases, impossible. Therefore, the submission by the legal counsel for the plaintiff thereto is not strange or far-fetched. Any Judge is in as good a position as his predecessor would have been in to evaluate the evidence, and subsequent submissions by the parties.

[18] What about the delay in this case? I will now pay a debt; I promised to cite some of the discreditable incidents in this case.

Turbulence during flight

[19] This suit has experienced and continue to experience turbulence. It was filed in Kericho High Court in January 2013 by the plaintiff.

[20] The defendant did not file a defense and Kericho High Court entered a default judgment. On 28. 8.2013, parties set aside the default judgment by consent.

[21] The case was then transferred to Narok in 2015.

[22] The plaintiff’s case was heard before Meoli J. in Narok on 29. 6.2016 and 26. 10. 2016 and the plaintiff closed his case. All witnesses were cross-examined by defence counsel at the time.

[23] On 2. 12. 2016, when the case was scheduled for defence hearing, the defendants failed to prosecute their case, for they did not have witnesses. They were granted an adjournment to 28. 3.2017. They again sought and obtained an adjournment to 18. 5.2017. Alas, on the appointed date they again applied for and obtained an adjournment to 6. 7.2017. Hearing was adjourned at the instance of court not sitting.

[24] On 21. 9.2017, the defence sought for more time to explore settlement of the case. Matter was set for mention on 6. 9.2017. Come that day; parties recorded a consent filed on 1. 11. 2017 on liability and damages. The consent was amended filed on 20. 11. 2017. Consent judgment was entered before Bwonwong’a J. This consent was later set aside on the application of the defendant.

[25] On 29. 11. 2018, the court observed that there was no order from the court or the Court of Appeal staying the proceeding herein and so the proceedings could proceed.

[26] The defendants then proceeded to set down the main suit for hearing on 24th January 2019. The matter did not proceed on the said day because parties were absent.

[27] The plaintiff closed their case in 2016 but the defendant has not been able to present their defence. These incidents and the general conduct of the defendant cannot claim bona fides. The delay militates against the overriding objective of the court to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act, and of course the party’s statutory obligation to help the court achieve the overriding objective.

[28] Such incident as in this case violate the constitutional principle in Article 159 (2) (b) of the Constitution which provides that justice shall not be delayed. In the circumstances, an order of de novo will occasion great prejudice to the plaintiff’s right to fair hearing, and to have his case conclude within reasonable time. It will also rout the very core of the principle of overriding objective which was described aptly as:

"a new procedural code with the overriding objective of enabling the court to deal with cases justly." See Kamani vs Kenya Anti-Corruption Commissionciting the English case of Bigizivs Bank Leisure PLC {1999} 1 WLR 1926 .

[29] There will be no prejudice to the defendant if the case proceeds from where it stopped because the defendant was represented during the hearings and cross-examine the witnesses. There is no claim that the defence counsel was thoroughly incompetent. The argument and crave by the defendant to test the evidence by the witnesses is not tenable. In addition, although demeanour of witnesses is important in resolution of disputes, I do not see anything specially or particularly hinged on or determinable only through demeanour in this case. Notably, demeanour should not be elevated to be the sole or predominant factor in determination of cases. I should also add that the defence case is yet to be closed which means that they would still present witnesses and other evidence in support of their case. There is also an opportunity for submissions after close of defence case where matters requiring clarification will be clarified and also lay emphasis where necessary and due. On the legal scale, any deficiencies will be greatly mitigated.

[30] A retrial would in the circumstances of this case not be in the interests of justice to the parties.

[31] See also Stephen BoroGithiavs Family Finance Building Society & 3 others Civil Application No.Nai 263 of 2009 Nyamu J that: -

“...................A new dawn has broken forth and we are challenged to reshape the legal landscape to satisfy the needs of our time. The court must warn the litigants and counsel that the courts are now on the driving seat of justice and the courts have a new call to use the overriding objective to remove all cobwebs hitherto experienced in the civil process and to wed out as far as practicable the scourge of the civil process starting with unacceptable levels of delay and cost in order to achieve resolution disputes in a just, fair and expeditious manner…….” [Underlining mine]

Conclusion and orders

[32] This case is old. It was filed in 2013. The old age adages; justice delayed is justice denied,andjustice must not only be done but also be seen to be done encapsulated into principles of justice inter alia article 159(2)(b) of the Constitution, justice shall not be delayedshould weigh heavy and tilt the scale in this decision. This case has seen twists and turns ranging from pull and push between counsel to complaints against the trial court to recusal of the judge, to uncertainty of court orders to request akin to clarification of the court orders all of which resulted in the delay of resolution of this dispute. From the record the plaintiff’s case was closed after four witness testified before Justice C. Meoli in 2016. The defendant has not been keen on prosecuting its case. An order of de novo hearing will only cause great prejudice to the plaintiff. No prejudice will be caused upon the defendant if the case continues from where it stopped as they have the opportunity to prosecute their defence and call such evidence as would bring out their case.

[33] These facts and the circumstances of the case, favour the case to continue from where it had reached. Accordingly, I order: -

i) This case to continue from where it stopped;

ii) Any proceedings which has not been typed should be typed and supplied to all parties;

iii) The hearing of the case shall be on the basis of priority.

Dated, signed and delivered at Narok through Teams Application, this 10th day of February 2022

F. GIKONYO M.

JUDGE

In the presence of:

1. Kere for Defendant

2. Muigai for plaintiff

3. Mr. Kasaso - CA