Uhuru Highway Development Ltd & others v Central Bank of Kenya Deposit Fund Protection Board & 3 others [2003] KECA 24 (KLR)
The bottom line
#Kenya's Court of Appeal postponed a hearing because a party's lawyer fell ill; an unchallenged hospital report was proof enough.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the hearing of the appeal should be adjourned on the ground that Mr Ojiambo, counsel for the firm of M/s Oraro & Company acting for one of the main parties to the appeal, was prevented from attending by illness or incapacity.
- 2.What consequential listing and costs directions should follow upon granting the adjournment.
Key legal issues
#Whether the hearing of an appeal should be adjourned where counsel for a main party is incapacitated by illness, evidenced by an unchallenged medical report from a reputable hospital.
Yes - the adjournment was granted. The unchallenged medical report from a reputable hospital established reasonable cause (counsel's illness or incapacity), and refusal would have left a main party unrepresented and occasioned injustice; the adjournment was therefore allowed in the interests of justice.
The Court first satisfied itself on the evidentiary weight of the medical report: it came from a reputable hospital and its authenticity was unchallenged, so it stood as proof of counsel's condition. On that material it found that Mr Ojiambo was prevented by illness or incapacity from representing his firm's client, one of the main parties. It then weighed the consequence of refusal: the client would go unrepresented at the hearing, occasioning injustice. Balancing the demands of the cause list against the right to be heard through counsel, the Court allowed the adjournment in the interests of justice.
What consequential listing and costs directions follow where an adjournment of a hearing is granted.
The appeal was stood over to new dates to be obtained in the Registry on a priority basis; the Deputy Registrar was advised to assign at least four hearing days; and the costs of the day were made costs in the appeal in any event.
Having allowed the adjournment, the Court managed its consequences. The appeal was removed from the current and the following day's cause list and stood over to new dates to be fixed in the Registry on a priority basis, signalling that the indulgence was not to occasion delay. The Deputy Registrar was advised to allocate at least four days for the hearing, reflecting the appeal's expected length. On costs, the Court made no immediate award against either side; the costs of the day were reserved to follow the outcome of the appeal.
Legal principles established
#- Where counsel for a main party to an appeal is prevented from attending by illness or incapacity, evidenced by an unchallenged medical report from a reputable hospital, refusal of an adjournment would leave that party unrepresented and occasion injustice; in the interests of justice the adjournment ought to be granted.
- An unchallenged medical report from a reputable hospital is sufficient proof of counsel's illness or incapacity to ground an adjournment.
- Where an adjournment of a hearing day is granted, the costs of that day are made costs in the appeal, to follow the outcome of the appeal, rather than an immediate award against either side.
Court orders
#- 1.The application for adjournment is allowed.
- 2.The appeal is taken out of to-day's and to-morrow's cause list and stood over to new dates to be obtained in the Registry on a priority basis.
- 3.The Deputy Registrar is advised to assign at least four days for the hearing of the appeal.
- 4.The costs of the day (22 May 2002) shall be costs in the appeal in any event.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- No constitutional or statutory provision is cited. The Court determined an adjournment application in an appeal pending before it, in the exercise of its discretion over the conduct of the hearing: 'In the interests of justice we allow the application for adjournment.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We think that the medical report that has been shown to us is from a reputable hospital; and moreover, no one has challenged its authenticity.
It would appear therefore that Mr Ojiambo is prevented from a reasonable cause, namely, an illness or incapacity to represent the firm of M/s Oraro & Company which is one of the main parties to the appeal.
We believe that if we refuse adjournment it would mean that the said firm would not be represented in the appeal and thus occasioning it injustice. In the interests of justice we allow the application for adjournment.
The appeal is taken out of to-day's and to-morrow's cause list and is stood over to new dates to be obtained in the Registry on a priority basis.
We order that the costs of today shall be in the appeal in any event.
Issues in the judgment
#The supplied ruling has no caption, appeal number or party names: the appellant and respondent cannot be identified, and the only entity named, M/s Oraro & Company, is a firm of advocates acting for one of the main parties, not a party itself.
The text opens mid-substance with no recital of the application before the Court - who sought the adjournment, on what notice, or the position of the opposing parties - consistent with an ex tempore ruling transcribed without its caption and headnote.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uhuru Highway Development Ltd & others v Central Bank of Kenya Deposit Fund Protection Board & 3 others [2003] KECA 24 (KLR)", Case Analysis (2002). [Not stated in the supplied judgment]. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/24/eng@2003-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.