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Court of AppealPartially AllowedNot stated in the judgment· [1978] KECA 17 (KLR)

Abdulrehman v Almaery [1978] KECA 17 (KLR)

Court of Appeal
25 May 1978
ETE. TrevelyanSWS.W.W WambuziELE.J.E Law
887 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal against a High Court judgment entered for the plaintiff in a fatal road-traffic accident claim arising from an accident on the Mombasa to Malindi road on August 24, 1974. The hearing began in Nairobi on June 24, 1977, at which both defendants were present, and was adjourned more than once, largely at the instance of defence counsel. When the court re-assembled on July 15, the plaintiff closed his case, and defence counsel applied for a further adjournment because his 'more material witness', the second defendant, who was working some 15 miles from Malindi, might not have been notified of the hearing date. The trial court refused the adjournment without giving reasons and entered judgment for the plaintiff. The Court of Appeal, allowing the appeal, held that although the grant of an adjournment is a matter for the trial court's discretion and will not be disturbed if correctly exercised, the refusal here deprived the defendants of all opportunity of making their defence, was made without the court giving reasons, and left open the possibility of injustice to the defence. The judgment and decree were set aside and a retrial ordered. The costs of the first trial were left to the discretion of the retrial judge; the defendants received the costs of the appeal, set off against any costs awarded to the plaintiff should he succeed at retrial. Judgment was delivered at Nairobi on May 25, 1978 by Trevelyan, Ag. CJ, with Wambuzi and Law, JJA concurring.

Key legal issues

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01

Whether the trial court's refusal of the defendants' application for an adjournment warranted appellate interference

Holding

The appeal succeeds; the refusal was an incorrect exercise of discretion because it deprived the defendants entirely of their defence and was made without reasons

Reasoning

The discretion to adjourn is the trial court's, but it must be exercised correctly. The plaintiff had closed his case and any inconvenience could be met by costs. The defendants had shown a clear resolve to defend, defence counsel had attended, and the possible injustice to the defence could not be ruled out. The trial court also gave no reasons for the refusal. In those circumstances the discretion was wrongly exercised and the judgment could not stand.

p. 2
02

Appropriate remedy where an adjournment refusal has occasioned possible injustice

Holding

The judgment and decree are set aside and a retrial ordered, with costs of the first trial left to the retrial judge

Reasoning

Having found the discretion incorrectly exercised, the appellate court set aside the judgment and decree and ordered a retrial rather than substitute its own finding on damages, since the defence had never been heard. The costs of the first trial were left to the discretion of the judge presiding over the retrial, and the defendants received the costs of the appeal, set off against any costs the plaintiff may win at retrial.

p. 2

Legal principles established

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  • Whether or not an adjournment should be granted is within the discretion of the trial court, and its exercise will not be interfered with unless incorrectly exercised
  • An appellate court will interfere where a refusal of an adjournment results in a possible injustice, such as where a party is deprived of all opportunity of making its defence, especially where the trial court gave no reasons for the refusal

Court orders

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  1. 1.The judgment and decree appealed from are set aside
  2. 2.There shall be a retrial of the case
  3. 3.The costs of the first trial will be in the discretion of the judge who presides over the re-trial
  4. 4.The defendants will have the costs of this appeal to be taxed
  5. 5.In the event of the plaintiff succeeding in the re-trial, the defendants' costs of appeal will be set off against the costs awarded to him therein
On appeal from
High Court, Nairobi
Not stated in the judgment
Jurisdiction invoked
Not expressly stated in the judgment; appellate jurisdiction over a decision of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdulrehman v Almaery [1978] KECA 17 (KLR)", Case Analysis (1978). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/17/eng@1978-05-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.