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Court of AppealAllowedCivil Appeal No. 81 of 2018· [2020] KECA 778 (KLR)

Teleposta Pension Scheme Registered Trustees v Said Hemed & 3 others [2020] KECA 778 (KLR)

Court of Appeal of Kenya
24 April 2020
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
2,961 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated a land suit dismissed for delays, ruling judges must grant reasonable adjournments rather than deny parties their day in court.

What this practically means

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Executive summary

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The appellant, Teleposta Pension Scheme Registered Trustees, appealed against a ruling of the Environment and Land Court at Mombasa (A. Omollo, J.) dismissing its suit, ELC No. 229 of 2013, under Order 17 rules 2 and 4 of the Civil Procedure Rules for failure to produce evidence. On the hearing date of 21st February 2018, the appellant's counsel sought an adjournment because a survey report, described as crucial to the case, was not ready; the trial judge declined the adjournment and, as the appellant had no witnesses available, dismissed the suit. In a single judgment of the court, the Court of Appeal held that the trial judge's conclusion that no valid reason was advanced for the adjournment was a clear misdirection. The surveyor's late access to the suit property was an adequate reason; it was only the second adjournment sought; it was grounded in the court's earlier leave to file additional documents; the respondents would suffer no prejudice beyond another hearing date; and they had acceded to costs. The court applied the Mbogo vs Shah principles on interference with discretion, the H.K. Shah vs Osman Allu adjournment factors, and the right to be heard under Mbaki vs Macharia and General Medical Council vs Spackman, holding that denying the adjournment and compelling the appellant to prosecute without its witnesses was a gross miscarriage of justice. The appeal was allowed: the ruling and order dismissing the suit were set aside, the suit reinstated for mention within 14 days, to be heard by another judge other than A. Omollo, J., with the 1st and 2nd respondents bearing the costs of the appeal.

Key legal issues

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01

Interference with the trial court's discretion in refusing an adjournment

Holding

The trial judge's conclusion that no valid reason was advanced for the adjournment was a misdirection; the surveyor's inability to access the suit property was an adequate reason, and the adjournment should have been granted with costs.

Reasoning

The appellant had not habitually sought adjournments; the second adjournment sought was specifically in support of its case, pursuant to the court's earlier leave to file additional documents. The respondents suffered no prejudice beyond fixing another hearing date and had acceded to costs. A more efficacious approach was to grant the adjournment and award costs. The judge failed to take into account matters she ought to have considered.

p. 3
02

Dismissal of suit for want of prosecution and the right to be heard

Holding

Denying the adjournment and then requiring the appellant to prosecute its case without its crucial witnesses denied it the opportunity to be heard on merit, amounting to a gross miscarriage of justice justifying reinstatement.

Reasoning

After declining the adjournment, the judge gave no directions on the appellant's offer to avail a witness by 4.00 p.m. and instead dismissed the suit. Citing Mbaki vs Macharia and General Medical Council vs Spackman, the court held that a decision reached in breach of natural justice is no decision. The appellant's case was severely prejudiced without an opportunity to be heard.

p. 3

Legal principles established

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  • An appellate court will not interfere with the exercise of a trial court's discretion unless the court misdirected itself and arrived at an erroneous decision, or it is manifest from the case as a whole that the court was clearly wrong and injustice resulted.
  • In considering adjournment applications, the discretion must be exercised judicially, taking into account the adequacy of reasons given, the prejudice the other party is likely to suffer, and whether that party can be compensated by costs.
  • A party's right to be heard is a valued right; prejudicing or affecting a party's rights without affording an opportunity to be heard offends all notions of justice.

Court orders

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  1. 1.The ruling and order of the Environment and Land Court dated 21st February 2018 dismissing the appellant's suit is set aside
  2. 2.The appellant's suit (ELC No. 229 of 2013) is reinstated
  3. 3.The suit to be mentioned within 14 days from the date of delivery of the judgment for a hearing date to be fixed
  4. 4.The suit to be heard by another Judge of the Environment and Land Court other than A. Omollo, J.
  5. 5.The 1st and 2nd respondents shall bear the cost of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 17 rules 2 and 4
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50

Cases cited (11)

  • D T Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina & Another
    [1980] eKLR
  • Abdulreham vs Almaery
    [1978] eKLR
  • Peter Kariuki vs Attorney General
    [2014] eKLR
  • Japheth Pasi Kilonga & 8 others vs Mombasa Autocare Limited
    [2015] eKLR
  • Jack & Jill Supermarket Limited vs Republic & 4 others
    [2017] eKLR
  • Mbogo & Another vs Shah
    [1968] EA, p.15
  • Savannah Development Company Ltd vs Merchantile Company Limited
    CA No. 120 of 1992
  • H.K. Shah & Another vs Osman Allu
    (1946) 14 EACA 45
  • Mbaki & Others vs Macharia & Another
    (2005) 2 EA 206
  • General Medical Council vs Spackman
    [1943] 2 All ER 337
  • RIDGE v BALDWIN
    [1963] 2 ALL ER 66
On appeal from
Environment and Land Court at Mombasa
ELC No. 229 of 2013
Jurisdiction invoked
First appeal/appellate review under the Court of Appeal's jurisdiction; appeal against exercise of judicial discretion of the Environment and Land Court (Civil Procedure Act sections 1A, 1B, 3 and 3A invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Teleposta Pension Scheme Registered Trustees v Said Hemed & 3 others [2020] KECA 778 (KLR)", Case Analysis (2020). Civil Appeal No. 81 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/778/eng@2020-04-24

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