REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT MAKUENI

ELC APPEAL NO. E002 OF 2020

WAYUA WAITA..........................APPELLANT/APPLICANT

VERSUS

JAMES NGUI NDAMBUKI............................RESPONDENT

RULING

1. The application for ruling is the one dated 5^th October, 2020 and filed in court on 6^th October, 2020 by the counsel for the Appellant/Applicant seeking for: -

1) Spent.

2) That the Honourable court be pleased to order stay of the proceedings in MELC No. 59 of 2014 until the application is heard and determined or until the appeal is heard and determined.

3) That costs be in the cause.

2. The application is predicated on the grounds on its face and is supported by the affidavit of Wayua Waita, the Appellant/Applicant herein, sworn at Machakos on 5^th October, 2020.

3. The Respondent has opposed the application vide his grounds of objection dated 13^th October, 2020 and filed in court on 14^th October, 2020.  In total the Respondent has listed 19 grounds in his Grounds of Objection.  In my view those grounds could as well have been condensed into a replying affidavit.

4. The application was canvassed by way of written submissions.  The Appellant/Applicant has deposed in paragraphs 3, 5, 6, 7, 8, 9, 10 and 12 that the Appellant/Applicant initially intended to prepare a power of Attorney to have her son prosecute her case but on the advent of COVID-19 registration of documents became difficult as the land registries were closed, that on reopening of the courts, the Appellant/Applicant instructed her advocates to fix the case for hearing because she felt she was able to attend to it, that the Appellant/Applicant was informed by advocates which information she verily believe to be true that she fixed a hearing date for 30/09/2020 and served the notice on the Respondent’s counsel, that come 27/09/2020 the Appellant/Applicant felt ill and the condition deteriorated on 29/09/2020, that the Appellant/Applicant travelled to her sons house in Nairobi to seek medical checkup and he was treated in Victory Medical Clinic MH, that the Appellant/Applicant instructed her son Muendo Waita to inform her advocates that she would not be able to attend court on 30/09/2020, that on 30/09/2020, the trial court declined to Appellant/Applicant advocate’s application for adjournment and went ahead to close Appellant/Applicant’s case and fixed it for submissions on 14/10/2020, and that the Appellant’s/Applicant’s defence in MELC 59 OF 2014 is strong and she ought to be heard.

5. On the other hand, the Respondent has stated in grounds 3, 4, 5, 6, 8, 10, 11, 13 and 16 of his grounds of opposition that on the 11/09/2019, the defence was not ready to proceed with the hearing as the 1^st defendant had become mentally insane and for this reason sought another adjournment, that the court was kind and considerate and granted 30 days leave to the 1^st Defendant to substitute and directed parties to agree on and fix a convenient date for hearing at the court’s registry, that by mutual consent, the parties herein agreed on a convenient date and fixed the matter for defence hearing on the 30/09/2020, that when the matter came up for defence hearing on the 30/09/2020, again the defence sought an adjournment which was duly declined by the honourable court as the same had been advanced previously on the 07/08/2019 and on the 11/09/2019 further noting that it was the oldest case in court, that the 1^st Defendant/Applicant’s application dated 05/10/2020 is incompetent, ill-conceived and a blatant abuse of court process, that on the 11/09/2019, the court ordered the 1^st Defendant/Applicant to make substitution within 30 days in order to carry on with the case but up to date, the said substitution has never been effected, that it is a well settled principle of law that litigation must come to an end, that court orders should not issue in vain, that the 1^st Defendant/Applicant is playing truancy with the court process for despite being aware that senility is an irreversible degenerative condition and that there been no reasonable expectation of getting better, the 1^st Defendant/Applicant has failed to effect substitution and that the 1^st Defendant/Applicant has notoriously slumbered on her right as she has notoriously failed to substitute even after court ordered the same on the 11/09/2019, and for this reason the law of equity is very clear that equity does not aid an indolent litigant but one is vigilant, and that he who seeks equity must do equity.

6. In his submissions, the counsel for the Appellant/Applicant framed two (2) issues for determination namely: -

a) Whether it was fair to refuse to grant adjournment and close the Defendant/Respondent’s case?

b) Whether there are merits to this application for stay of proceedings.

7. Equally the Respondent’s counsel framed two (2) issues for determination namely: -

a) Whether the delay on part of the Appellant/Applicant is inordinate and inexcusable.

b) Whether the application dated 05/10/2020 has merit.

8. With regard to issue number one in the Appellant’s/Applicant’s submissions, the Appellant’s counsel submitted that the circumstances under which her application for adjournment was denied were unfair as no party should be condemned unheard.  The counsel went on to submit that sickness is a natural occurrence and that no one has control over.  The counsel pointed out that it is the right of every litigant to have a fair hearing as is envisioned in Article 50 of the Constitution which provides as follows: -

Article 50(1) “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

9. The counsel further cited Article 25(C) which provides: -

“Despite any other provision in the constitution, the following rights and fundamental freedoms shall not be limited –

(a) -

(b) -

(c) The right to fair trial, and

(d) -

10. Arising from the above, the counsel submitted, that while it is the discretion of the court to grant or refuse an application for adjournment, the same should be decided fairly without prejudice to any of the parties.  The counsel was of the view that this being a land matter which accordingly is a sensitive matter, it was only fair that each party in this case be heard.

11. In support of his submissions, the counsel relied on the case of Japheth Pasi Kilonga & 8 Others –Vs- Mombasa Autocare Ltd [2015] eKLR where 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.”

12. On whether there are merits on this application to warrant stay of proceedings, the counsel relied on the case of Savannah Development Company Ltd –Vs- Marchantile Company Ltd CA No. 120 of 1992 where the Court of Appeal relied on the decision of the Judicial Committee of the Privy Council in H. K. Shah & Another –Vs- Osman Allo [1946]14 EACA 45 in which the Privy Council laid out the principles to be applied for granting or refusal of applications for adjournments as follows: -

“The granting or refusal of an application for adjournment is, of course, a matter of discretion, but the discretion must be exercised judicially.  The authorities go to show that the elements to be taken into consideration are (1) The adequacy of the reasons given for the application for adjournment; (2) how far, if at all, the other party is likely to be prejudiced by an adjournment; and (3) how far such other party can be suitably compensated by mulcting the applicant in costs.”

13. Arising from the above, the counsel for the Appellant submitted that the reason given for the adjournment by the Defendant, the Appellant/Applicant in this appeal, was sickness.  The counsel added that sickness is an act of nature and that none can foresee it.  The counsel was of the view that sickness was a sufficient reason to make an application for adjournment and that the fact that the Appellant/Applicant had made a similar application in the past was not a sufficient reason to refuse an application for adjournment.  The counsel pointed out that the trial court was made to understand that the Appellant/Applicant had been sick for days prior to the hearing date and that had occasioned the application for adjournment even though the hearing date had been fixed by consent.

14. It was further submitted that the application for adjournment would not have been prejudicial to the Respondent since his case had been heard and closed.  That it would have been fair to have the suit determined by hearing the evidence of the Appellant/Applicant.

15. It was also submitted on behalf of the Appellant/Applicant that the Appellant/Applicant’s application for adjournment was made with an offer for costs to the Respondents.

16. The counsel was of the view that the Appellant/Applicant’s application satisfied the grounds for the grant of an adjournment and the same ought to have been granted under the circumstances.

17. The counsel further relied on the case of Lawrence Muturi Mburu –Vs- Dalago Tours Ltd [2019] eKLR where it was held that;

“The denial of adjournment was not justified.  The net effect is that the Appellant was condemned without full hearing of his case.  The first ground thus succeeds and court documents opt to have to deal with the other grounds.”

18. The counsel for the Respondents submissions on whether the delay on the part of the Appellant/Applicant was inordinate and inexcusable were that the Respondent’s case before the trial case was closed on 7^th August, 2019.  The counsel pointed out the Appellant/Applicant sought for adjournment and defence hearing was slated for 11^th September, 2019 when it was adjourned again on the grounds that the Appellant/Applicant had become ‘mentally insane’. The counsel submitted that Appellant/Applicant was granted 30 days leave to make substitution and that by the time the matter came up for defence hearing on 30^th September, 2019, a date that had been fixed by consent, no substitution had been done.  The counsel relied on the case of Professor Mwangi S. Kaimenyi –Vs- The Attorney General & Another [2014] eKLR where the court described what constitutes inordinate delay as follows: -

“There is no precise measure of what amounts to inordinate delay.  Inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case, the explanation given for the delay; and so on and so forth nevertheless, inordinate delay should not be difficult to ascertain once it occurs, the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable….”

19. Arising from the above, the counsel was of the view that the 13^th months delay that was occasioned by the three adjournments was inordinate.

20. On whether or not the instant application has merits, the counsel submitted that despite the Appellant/Applicant being aware that senility is a irreversible degenerative condition (if any existed as no proof was tabled), there was no expectation if the defence was being honest that the Appellant/Applicant would get better.

21. The counsel submitted that the Appellant/Applicant had slumbered on her rights and that equity is clear that it aids the vigilant and not the indolent.  The counsel concluded by submitting that the application lacks merit.  The counsel relied on the case of National Bank of Kenya Ltd –Vs- Anaj Warehousing Ltd [2015] eKLR. 

22. Having read the application, the grounds of opposition and the rival submissions, my finding is as follows;

23. Firstly, it is not in dispute that in the suit before the trial court, the Respondent closed his case on 7^th August, 2019 and the matter was fixed for defence hearing on 11^th September, 2019 when the Appellant/Applicant sought for adjournment and leave to substitute the Appellant/Applicant who was said to have gone senile. The matter was adjourned to 30^th September, 2019 when the counsel for the Appellant/Applicant applied for further adjournment on the grounds that the Appellant/Applicant had fallen sick.  In his ruling the learned trial magistrate had this to say;

“Senility being an irreversible degenerative condition, there was no reasonable expectation if the defence was being honest that the 1^st Defendant would get better.”

24. In my view, the learned trial magistrate cannot be faulted for arriving at the decision that he made. It was up to the Appellant/Applicant to convince the trial court why she appeared to have abandoned plans to substitute the Applicant/Appellant and yet the information that the Appellant/Applicant had gone senile came from them. There was no evidence that the Appellant/Applicant had been medically examined to confirm whether or not she was fit to testify.

25. By indicating to the trial court that the Appellant had gone senile and later by making an application that she was sick and therefore unable to appear to testify in her case, the Appellant/Applicant was, in my view, approbating and reprobating at the same time.  Whereas, the Appellant/Applicant had the right to a fair trial under Article 50 of the Constitution, her conduct during the trial leaves no doubt that she has delayed the conclusion of the suit before the trial court.

26. Nothing has been placed before me to show that there was adequacy of reasons given before the trial court for adjournment, that the Respondent would not have been prejudiced by being forced to further wait for the conclusion of the trial after doing so for 13 months and that given the circumstances of the delay in concluding the trial, costs would have sufficient.

27. Secondly, the Appellant/Applicant did not file either a copy of the order or a certified copy of the same thereby making this appeal incompetent.

28. Arising from the above, my finding is that the application lacks merit and same is dismissed with costs to the Respondent.

Signed, dated and delivered via email at Makueni this 29^th day of January, 2021.

.............................

MBOGO C.G.

JUDGE

Court Assistant:  Mr. G. Kwemboi.