REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL APPEAL NO. 33 OF 2016

(Being an Appeal arising from Kitale Chief Magistrate’s Court CMCC No.  198 of 2012 delivered by Hon. P.W. Wasike – RM on 18/11/2016⁾

RAEL WAMBUI MUNYUA & WILSON BIKETI (As legal representatives of the Estate of

ANTHONY SIMIYU SIRENGO (Deceased)......................................................APPELALNTS

VERSUS

JUSTUS NGOTHO MURIUKI .................................................................1^ST RESPONDENT

JOSEPH MURIUKI ...................................................................................2^ND RESPONDENT

JUDGMENT

On 9^th September 2016, the trial court (Hon. P.W. Wasike – RM) ordered the Plaintiffs to close their case after they failed to avail their witnesses.  The trial court made this order after it formed the view that the Plaintiffs had failed to exercise due diligence in availing their witnesses before court on the scheduled date despite being given several chances and opportunity to do so.  Since one of the Plaintiffs’ witnesses had partially testified, the court ordered the parties to file closing submissions so that the court could render its judgment. 

Before that could happen, the Plaintiffs filed an application dated 5^th October 2016 seeking to have the particular order reviewed, varied or set aside.  The plaintiffs predicated their application on Sections 1A, 1B, 3A of the Civil Procedure Act and Orders  12 Rule 7 and 45 Rule 2(1) of the Civil Procedure Rules. The thrust of the Plaintiffs’ application was that they should be given an opportunity to prosecute their case to its logical conclusion because they were ready with their case.  They attributed their failure to attend court on the scheduled date to miscommunication with their advocate. They urged the court not to punish them on account of the mistake of their advocate.  They stated that if the case was not reinstated to hearing, the estate of the deceased, which was the intended beneficiary of the suit, would suffer.  They undertook to abide by any terms that the court may impose so that they would be able to proceed with their case. The application was opposed by the Defendants.

In its ruling dated 17^th November 2016, the trial court declined to grant the application.  The court was of the view that to grant the application would amount to the court abusing its own discretion because the Plaintiffs had on several occasions failed to proceed with the case despite being given several opportunities to do so. At the material part of the ruling, the learned Magistrate stated as follows:

“18. I have no doubt that a similar finding applies against the Plaintiff in the current application.  The expedient disposal of cases in court is not only a statutory requirement but also a constitutional as can be gleaned from the provisions of Article 159 (2) (b) of the Constitution (2010). 

19. The defense also has a right to have the case considered expeditiously and cannot have the case hanging on their heads indefinitely more so by indolent litigants. From the record that the Plaintiffs were granted all reasonable time to prosecute the case but did not and cannot be heard to say that they have been denied a hearing.”

Aggrieved by this decision, the Plaintiffs filed an appeal to this court. In their memorandum of appeal, the Plaintiffs raised four grounds of appeal: they faulted the trial magistrate for failing to consider the peculiar circumstances of the case and evidence on record which, if considered would have led the court to reach a different decision. They were aggrieved that the trial magistrate had reached the verdict that they were not keen to prosecute the case. They faulted the trial magistrate for failing to consider that in the circumstances mistake by counsel could not be visited on the plaintiffs. They were finally aggrieved that the ruling by itself was manifestly unfair and unjust in that it locked them out from the seat of justice. The Appellants therefore urge the court to allow their appeal so that they may be able to prosecute their case.

Prior to the hearing of the case, both counsel for the Appellants and the Respondents filed written submission. They also highlighted part of the said submission during the hearing of the appeal.  This court has carefully considered the said submission. It has also had the opportunity to peruse the proceedings of the trial court. As the first appellate court, this court is required to re-look at the facts of the case afresh with a view to arrive at its independent determination whether or not to uphold the findings by the trial court. In reaching its decision, the court is required to be cognizant of the fact that it cannot substitute its decision with that of the trial court if the evidence does not support such finding (See SELLE –VS – ASSOCIATED MOTOR BOAT CO. LTD. [1968] EA 123).

In the present appeal, there is really one issue for determination i.e whether the trial court properly exercised its discretion when it disallowed the Appellant’s application for an adjournment on the date that the case was scheduled for hearing.  From the court record, it is apparent that the plaintiffs had sought adjournment three times prior to the fateful date.  In the course of the same period, the defendants had also sought adjournment three time.  Whereas the trial court was within its right to manage the court process by ensuring expeditious disposal of cases, the trial court was under obligation to treat the parties fairly.

In the present appeal, it was evident that the trial court applied one standard for the Appellants while applying a different standard for the Respondents. No wonder the Appellants felt unjustly and unfairly treated.  This court agrees with the Appellants that the scales of justice appeared to have been tilted in favour of the Respondents without any justifiable reason. In the Nigerian case of Obajin V Adedeji 2008 3NWLR the court held thus when considering the concept of justice:

“Justice means fair treatment and the justice in each case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is only done but it must be seen to be done.” 

In every case, parties must be enabled and accorded every opportunity by the court to present their case before court in a manner that is equal and fair to the parties.  This is the concept that is referred to as “Equality of arms”.  This court could do not better than cite the case of Kallfrican V Belgium Convention cited in the case of Joseph Njoroge Kimondo & Another Vs (a minor suing through her next friend and father JWM) [2018] eKLR where it was held that:

“Equality of arms i.e the premise that everyone who is a party to proceedings shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis- a -vis his opponent.”

In the present appeal, it was clear that the Appellants were treated in a manner that displayed an element of partiality on the part of the trial court. Whereas this court does not condone the practice of parties unnecessarily seeking adjournment of cases especially where the case has been confirmed for hearing after pre-trial conference, nevertheless, this court is of the considered opinion that the trial court did not properly exercise its discretion when it declined the Appellants application for adjournment when under similar circumstances it had granted the Respondents such adjournments.

Enough said. It is clear from the foregoing that the appeal is for allowing. It is hereby allowed as a result of which the decisions of the trial court made on 9^th September 2016 and 18^th November 2016 are set aside and substituted by order of this court granting leave for the Appellants to proceed with their case from where it had reached prior to the impugned decisions.  The Appellants shall have the costs of this appeal. It is so ordered.

DATED AT KITALE THIS 16TH DAY OF MARCH 2022.

L. KIMARU

JUDGE