Was the lower court entitled to proceed with the hearing of the Suit on account of the Appellant’s failure to comply with its orders issued on 19th September, 2017?
23.As this is a first appeal, I have a duty to re-evaluate the evidence before me. This principle as set out in the Court of Appeal decision of Selle and Another versus Associated Motor Boat Company Ltd & Others  EA 123, where the court stated that:
24.Looking at the record before me, I see that the facts set out by the Respondent above, are the correct chronology of events. It is evident that the Appellant was in fact ordered to pay costs arising from his adjournment on 19th September, 2017. This issue was raised again on 6th November, 2017 on the date of the rescheduled hearing, where the proceedings show that the Respondent submitted:-
25.The proceedings show that again on 23rd January, 2018, the Plaintiff raised the same issue, stating that the Defendant had not complied and had no audience. The Magistrate accordingly, stated that “the matter will proceed at 10:20 am, and the Defendants have no audience till the orders of the court are complied with.” This was never done.
26.Looking at the record, I see that this is a very old case. The Plaint was filed in the year 2007. The Suit was first listed for hearing on 23rd September, 2008, but did not proceed despite the Plaintiff being ready because the Defendant sought his first adjournment. Since then, for over 11 years, for one reason or another, there has been continuous adjournments.
27.Looking at the history of this case, I am of the view that this litigation must come to an end. Article 159 of the Constitution mandates this and all our courts to proceed with expedition. It states unequivocally, that justice shall not be delayed.
28.Having stated the above, I have considered the Appellant’s submission and authorities in support of his argument that a party ought not to be denied an audience on account of non-payment of adjournment fees, and especially if he did not know the consequences of his non-compliance with the orders.
29.First, based on the record, I am not persuaded that the Appellant did not know the consequences of his non-compliance. The record shows clearly that at the previous hearing, the Advocate for the Respondent raised this issue. Accordingly, he knew that the issue of ‘no audience’ was a live issue in the event he failed to make payment.
30.Second, I think there may be some instances in which a court may be justified in denying a litigant audience. One such scenario is the failure of the litigant to abide by orders of that court. Having ordered the Appellant to make payment over a year ago, the court, in my view, could not continue to wait indefinitely for the Appellant to comply. My reading of the situation is that the Appellant put the court in a difficult situation, the Magistrate was left with the option to either vacate his previous orders and proceed, or wait for the Appellant to comply at his convenience. This was not appropriate.
31.I note from the record that it is not clear whether or not the court issued the Appellant with a citation of contempt, but what is clear is that an order was made by the lower court, and over a year later, when the matter came up for hearing, and perhaps to date, the same has not been complied with.
32.In the circumstances as described above, I am satisfied that the Appellant was afforded a reasonable opportunity to put his case forward, but chose not to. Such an opportunity to present one’s case, to my mind, must be balanced against the right of the Respondent to have the trial begin and conclude without unreasonable delay. This is consistent with a holistic reading of Article 50 of the Constitution and the principle that the Constitution ought to be interpreted in a manner that give effect to its objects, purposes, and values.
33.In balancing the above rights of the parties, I cannot disregard the fact the Appellant was in breach of court orders at the time of the hearing, and perhaps is still in breach at present. There is no evidence to show if he has since paid the outstanding costs of adjournment.In the circumstances, I cannot help but think that the opportunity to be heard by the court must be afforded in compliance with the rules of civil procedure and orders of the court. Here, the Appellant had over year to comply, from the date of the previous hearing, and he was even given up 10:20 a.m. on the date of the hearing. Still, he failed to comply.
34.It is trite law that orders made by a properly constituted court of law must be obeyed. In the case of Hadkinson – vs – Hadkinson  ALL ER, it was held:-
36.More recently, in Teachers Service Commisison – vs – Kenya Union Of Teachers & 2 Others eKLR, the court expanded its reasoning in relation to the same principles in the following terms:-
37.Based on the law and the reasons as stated above, I am of the view that the Magistrate reached a reasonable conclusion on this issue. Accordingly, I decline to interfere with the lower court’s decision on same.
Was the lower court correct in its award of damages?
38.The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent, and comparable awards. This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR Civil Appeal No. 147 of 2020  eKLR, where the Court of Appeal held:-
39.Further to the above, in the Court of Appeal decision of Butt vs. Khan (1977) 1 KAR the court stated that the test on whether or not to interfere with an award of damages, is as follows:-
40.With regard to the award of general damages, I have considered the range of relevant awards which tend to vary between Kshs. 300,000/= and Kshs. 500,000/=. The Appellant cited the authority of Jitan Nagra v Abednego Nyandusi Oigo (2018) eKLR, in which the court awarded the injured party the sum of Kshs. 450,000/= for what the Appellant submitted are similar injuries.
41.I have also considered the Respondent’s prayer that the award for general damages ought to be enhanced to the sum of Kshs. 1,300,000/= based on the decision of the High Court in Joseph Musee Mua v Julius Mbogo Mugi & 3 others  eKLR. Respectfully, I do not think the nature of injuries were similar in the said decision and the authority may be distinguished from the circumstances in present matter.
43.Having considered the variance across the relevant awards as cited above by counsel, which varied between Kshs. 300,000/= and Kshs. 500,000/=, I do not think that the award of Kshs. 500,000/= was inordinate in comparison to similar injuries. I am of the view that the assessment of general damages is not an exact science, and that a certain amount of discretion ought to be left to the trial court subject to the correct legal principles articulated above. I am satisfied that the lower court’s award fell within a range of acceptable outcomes.
44.Based on the reasons set out above, I find that the appeal is without merit and the same is hereby dismissed with costs to the Respondent.