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ELCDismissedNot stated in judgment· [2019] KEELC 3445 (KLR)

Mansukhalal Jesang Maru v Frank Wafula [2019] KEELC 3445 (KLR)

High Court of Kenya
30 April 2019
MNMwangi Njoroge
1,287 words in judgment
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The bottom line

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The High Court confirmed that Kenyan courts can impose punitive costs when granting adjournments, and litigants who repeatedly delay must accept those terms.

What this practically means

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Executive summary

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This ruling of the High Court at Kitale (Mwangi Njoroge J) determined a Notice of Motion dated 28/3/2019 by the defendant seeking review or vacation of a court order of 21/3/2019 requiring him to pay the plaintiff Kshs.20,000/= before the next hearing date, and further seeking that costs of the entire suit be in the cause. The suit was filed in 2008 and was, by the time of the ruling, about ten years old. The defendant complained that he had been condemned to pay costs on three consecutive occasions for adjournments, that the payments made were not receipted, and that he was being punished unfairly for the failings of his advocates, one of whom he had substituted and whose replacement failed to attend personally though he sent a colleague to stand in. The plaintiff opposed through grounds of opposition, contending there was no error apparent on the face of the record, that the court had discretion to impose terms when granting a contested adjournment, and that the defendant's remedy, if any, was appeal rather than review. The court noted the defendant's history of at least six direct or indirect adjournment applications within about six months. Relying on Order 17 rules 1(1) and 2 of the Civil Procedure Rules, the court held that a court granting an adjournment may attach terms including costs, and that punitive costs are a legitimate and lesser-evil option against a party whose bona fides are doubtful, preserving the litigant's right to be heard while protecting the innocent party from delay. The application was dismissed with costs.

Key legal issues

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01

Whether the court's discretion in granting adjournments can extend to orders as to costs payable before the next hearing date

Holding

Yes. Order 17 Rule 2 does not fetter the directions a court may give after allowing an adjournment, and such directions may include orders as to costs, including punitive costs to curb unnecessary delay.

Reasoning

The court examined Order 17 rules 1(1) and 2 of the Civil Procedure Rules. Rule 1(1) requires justification before an adjournment; Rule 2 leaves the court free as to directions after granting one. The court identified two options: grant the adjournment with punitive costs, or compel the party to proceed. Punitive costs were held the lesser evil, preserving the right to be heard while salving the wounds of delay inflicted on the innocent party.

p. 2
02

Whether the defendant could seek review of the costs order instead of appeal

Holding

The plaintiff argued review was unavailable and the defendant should have appealed; the court did not decide this point expressly, instead dismissing the application on the merits of the adjournment-costs discretion.

Reasoning

The plaintiff's grounds of opposition contended that the applicant could have appealed against the order of 21/3/2019 and that review would not be available. The court, however, resolved the application by holding that the orders made were a proper exercise of discretion, noting the defendant's repeated adjournments from 8/10/2018 and the age of the suit filed in 2008.

p. 1

Legal principles established

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  • A suit set down for hearing shall not be adjourned unless the party applying satisfies the court that it is just to grant the adjournment
  • A court granting an adjournment has discretion to attach terms, including orders as to costs, even punitive costs
  • A litigant granted an adjournment on terms has no recourse other than to abide by the orders of the court

Court orders

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  1. 1.The application dated 28/3/2019 is dismissed
  2. 2.The defendant to pay costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 1(1)
  • Civil Procedure RulesOrder 17 Rule 2
Jurisdiction invoked
Inherent jurisdiction of the court under the Civil Procedure Act and Civil Procedure Rules (Order 17 cited)

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, "Mansukhalal Jesang Maru v Frank Wafula [2019] KEELC 3445 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3445/eng@2019-04-30

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