Samson Auma v Jared Shikuku & another [2007] KECA 285 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judge must decide an adjournment application on its merits before dismissing a case for non-attendance.
What this practically means
#Executive summary
#Key legal issues
#Duty to first determine an application for adjournment before taking any other step
Where an unopposed application for adjournment is made when a suit is called on for hearing, the trial judge must consider and decide the application on its merits, by a ruling, before dismissing the suit or taking any other step; failure to do so is a misdirection.
Counsel holding brief for the plaintiff gave specific reasons for the adjournment: lead counsel was before the Court of Appeal in Mombasa, co-counsel was bereaved, and rule 11A of Order X had not been complied with. Defence counsel did not oppose. The application raised a discretionary question which the judge was bound to decide either way, yet the reproduced ruling shows no consideration of it. Had it been refused, the suit would have proceeded to hearing and counsel could have decided how to prosecute the case.
Dismissal of a suit on a ground not canvassed before the court
It is a serious misdirection and an incorrect exercise of discretion for a court to dismiss an entire suit for non-attendance on a ground not argued before it while an adjournment application remains undecided, particularly before the hearing proper has begun.
The judge dismissed the suit under Order 9B rule 2 on the ground that none of the parties had attended, although both counsel were before him and an unopposed adjournment application was pending. That ground was not canvassed in the application. Dismissing the entire case on it, before the hearing proper began, terminated the appellant's case without it being heard on the merits - a serious misdirection and an incorrect exercise of discretion producing grave injustice.
Appellate interference with the exercise of judicial discretion on adjournments
An appellate court is very slow to interfere with a trial judge's discretion on adjournment but is entitled, and it is its duty, to review the decision where the result would defeat a party's rights and cause injustice, as where a party is shut out from a hearing.
The Court adopted Atkin LJ in Maxwell v Keun, that an appellate court should be very slow to interfere with a judge's discretion on adjournment but has power, and a duty, to review an order that defeats a party's rights or works injustice. It also applied Mbogo v Shah and Mugachia v Mwakibundu: interference is warranted where the judge misdirected himself, acted on wrong principles or exercised his discretion injudiciously. Because the ruling shut the appellant out from a hearing, interference was justified.
Duty of a first appellate court to evaluate the record afresh
On a first appeal the Court of Appeal analyses and evaluates the record afresh before reaching its own conclusions on the matter before it.
In assessing whether the adjournment application was frivolous, the Court expressly proceeded on its role as a first appellate court, analysing and evaluating the record afresh. It independently concluded that the application was not frivolous given counsel's engagement before the Court of Appeal in Mombasa, the bereavement of co-counsel, and outstanding procedural steps. This approach underpins, but is not itself the ratio of, the decision to set the dismissal aside.
Legal principles established
#- An application for adjournment made when a suit is called on for hearing must be dealt with first, on its merits, and either allowed or rejected, before the court takes any other step in the matter.
- It is a serious misdirection for a court to dismiss an entire suit on a ground not canvassed before it while an adjournment application is pending; the correct course is to rule on the adjournment first and, if refused, allow the suit to proceed to hearing.
- An appellate court will be very slow to interfere with a trial judge's exercise of discretion on adjournment, but it is entitled in law to interfere where the discretion was exercised incorrectly and the result is grave injustice, such as a party being shut out from a hearing of its case.
Court orders
#- 1.The appeal is allowed.
- 2.The ruling of the superior court dismissing the case is set aside.
- 3.The suit shall proceed to hearing after all procedural stages are finalised.
- 4.The appellant will have costs of this appeal.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.C.C No. 175 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal from a decision of the High Court; the judgment does not expressly cite the constitutional or statutory provision conferring appellate jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kezia Wambui Mwaura & another v Clement J. M. Kariuki & 4 others [2017] KECA 582 (KLR)[2017] KECA 582 (KLR)7 Apr 2017applied
Cite this brief
#Cite this brief
Caselaw, "Samson Auma v Jared Shikuku & another [2007] KECA 285 (KLR)", Case Analysis (2007). Civil Appeal 191 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/285/eng@2007-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.