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Court of AppealAllowedCivil Appeal No. 189 of 1999

BAGWASI MARANGA (minor suing through his next friend and father CHARLES MARANGA BAGWASI) vs SAMUEL KAMONJO MUCHIRI & another [2000] KECA 372 (KLR)

Court of Appeal of Kenya
19 May 2000
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a judge cannot refuse an adjournment without reasons, then dismiss your case for evidence you were blocked from presenting.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal against the High Court's dismissal of a motor-accident negligence suit brought by a father and his minor son. The High Court (Ang'awa J) had found the Respondent wholly liable for the accident but dismissed the claim for damages because the plaintiffs failed to call the doctors to prove their injuries. That failure stemmed from the Judge's own refusal, in four words and without reasons, of an adjournment sought on the first of two set-down hearing days to enable the authors of medical reports to attend and produce them. Applying Mbogo v Shah and Openda v Ahn, the Court held that refusal of an adjournment is an extreme course and that the Judge's peremptory and unreasonable refusal, coupled with her later blaming the appellants for the doctors' absence, was clearly wrong and caused a gross miscarriage of justice. The Court further held that credible and unchallenged evidence of injuries should have attracted an award of general damages. It also noted the Judge's non-compliance with section 19(1) of the Oaths and Statutory Declarations Act in receiving the minor's evidence, and criticised the hearing of the suit after 5 p.m. contrary to the Chief Justice's circular on official working hours. The appeal was allowed, the judgment of 2nd June 1999 and the proceedings of 18th May 1999 were set aside, a fresh trial before a Judge other than Ang'awa J was ordered, the appellants received the costs of the appeal, and a copy of the judgment was to be served on Ang'awa J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in refusing, without reasons, the Appellants' application for an adjournment to enable the authors of medical and other reports to be called to give evidence on the second hearing day
  2. 2.Whether the Judge was wrong to dismiss the suit for failure to call the doctors when she herself had refused the adjournment that would have allowed their attendance
  3. 3.Whether general damages could be awarded on the basis of the credible and unchallenged evidence of the Appellants and the documents produced
  4. 4.Whether the Judge erred in admitting the evidence of the minor without complying with section 19(1) of the Oaths and Statutory Declarations Act
  5. 5.Whether the Judge should have heard the suit after 5 p.m. contrary to the Chief Justice's circular on official working hours

Key legal issues

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01

Refusal of adjournment and miscarriage of justice

Holding

The Judge's peremptory refusal of the adjournment, without reasons and despite a second hearing day being available, was clearly wrong and caused a gross miscarriage of justice, warranting appellate interference.

Reasoning

The court applied the Mbogo v Shah discretion test and Openda v Ahn on adjournments. The Judge refused the application in four words without any reason, even though another day had been set aside for hearing and the purpose was only to have the authors of medical reports attend. Combined with her later blaming the Appellants for not calling the doctors, the exercise of discretion was manifestly wrong and resulted in injustice.

p. 3
02

Dismissal of suit for failure to call doctors

Holding

It was wrong to dismiss the suit for failure to call the doctors when the Judge herself had refused the adjournment that would have enabled their attendance.

Reasoning

The Judge found the Respondent wholly liable but declined damages because the doctors were not called. The court found this reasoning untruthful in effect, since the Judge's own refusal of the adjournment prevented the doctors from being called. Credible, unchallenged evidence of injuries sufficed for an award of general damages.

p. 2
03

Evidence of a child of tender years

Holding

The Judge failed to comply with section 19(1) of the Oaths and Statutory Declarations Act before receiving the minor's evidence, merely noting that the court warns itself.

Reasoning

The statute requires the court to form an opinion that the child either understands the nature of an oath or, if not, possesses sufficient intelligence and understands the duty of speaking the truth. The Judge did none of this, only recording a self-warning, which the court noted but treated as secondary ('But no matter').

p. 2

Legal principles established

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  • An appellate court will not interfere with a judge's discretion on adjournment unless the judge misdirected himself or was clearly wrong in the exercise of the discretion, resulting in injustice.
  • Refusal of an adjournment is an extreme course for a judge to take and will be interfered with where it causes an injustice.
  • Where a plaintiff gives credible and unchallenged evidence and there is proof of injuries, general damages for pain and suffering should be awarded even without calling the doctors.
  • A judge should not hear a suit after 5 p.m. unless there are special reasons for doing so, per the Chief Justice's circular on official working hours.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of Ang'awa J delivered on 2nd June 1999 and the proceedings of 18th May 1999 are set aside
  3. 3.The suit filed by the Appellants in the High Court to be heard and determined afresh by a Judge of the High Court other than Ang'awa J
  4. 4.The Appellants shall have their costs of the appeal
  5. 5.A copy of the judgment to be served on Ang'awa J

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1698 of 1994
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal, Civil Appeal No. 189 of 1999)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is hereby allowed and the judgment of the learned Judge delivered on 2nd June, 1999, and the proceedings of 18th May, 1999, are all set aside and the suit filed by the Appellants in the High Court be heard and determined afresh by a Judge of the High Court other than Ang'awa J.
p. 3Final orders - appeal allowed, judgment and proceedings set aside, retrial ordered
the learned Judge was clearly wrong in the exercise of her discretion which in our view, resulted in a gross miscarriage of justice.
p. 3Interference with discretionary refusal of adjournment
if the Appellants as in this case, gave credible and unchallenged evidence, they should have been awarded some general damages for pain and suffering.
p. 2General damages on unchallenged evidence of injuries
The refusal of an adjournment is what Buckley J in Rose v Humbles (1970) 2 All ER 519, 523 f Ch D) called an extreme course for a judge to take
p. 3Adjournment refusal as an extreme course

Issues in the judgment

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minor

The judgment refers to a Chief Justice's Circular Ref. No. C.J. 69 dated 27th April, 2000, yet the appeal was decided on 19th May, 2000; the dates are consistent but the circular postdates the hearing events of 1999, which is unremarkable. No internal contradiction found.

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, "BAGWASI MARANGA (minor suing through his next friend and father CHARLES MARANGA BAGWASI) vs SAMUEL KAMONJO MUCHIRI & another [2000] KECA 372 (KLR)", Case Analysis (2000). Civil Appeal No. 189 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/372/eng@2000-05-19

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