Mugachia v Mwakibundu [1984] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal restored a plaintiff's dismissed lawsuit, ruling that refusing an adjournment unfairly denied him his day in court despite his lawyer's mistakes.
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 decision of July 5, 1983 dismissing the suit was made under order IX B rule 4 of the Civil Procedure Rules and hence whether the application to set aside under rules 4 and 8 was properly dismissed
- 2.Whether the trial judge correctly exercised his discretion in refusing the application for an adjournment on July 5, 1983
- 3.Whether the proceedings of July 5, 1983 were ex parte such that the suit's dismissal could be set aside under order IX B
Key legal issues
#Whether the trial judge's refusal of an adjournment was a proper exercise of discretion
The refusal was an unjudicious exercise of discretion; the judge failed to consider that the ground for adjournment was genuine (the key medical witness was overseas), failed to consider an adjournment to the afternoon, and did not carry out a sufficient inquiry; allowing the dismissal to stand would deny the plaintiff a hearing and cause grave injustice.
The appellant's key witness, a surgeon, was out of the country on the hearing date; the ground was genuine and it was irrelevant whether the defence needed him. Neither the plaintiff nor his counsel was instrumental in the witness's absence. The judge adopted a hostile approach, did not even consider an adjournment to the afternoon, and took a course that shut one party out from having his rights litigated. Authorities establish that such an extreme course is reserved for exceptional cases, which this was not.
Whether the proceedings of July 5, 1983 were ex parte so as to be set aside under order IX B rule 8
They were not ex parte. Counsel remained in court, did not withdraw, and elected to offer no evidence; the dismissal was for lack of evidence, not under rule 4, and the application to set aside was misconceived.
Following Din Mohamed v Lalji Visram & Co, leaving the court after refusal of an adjournment does not make proceedings ex parte; here counsel did not even leave but elected to offer no evidence. Counsel conceded this. The appeal against the August 30 order dismissing the setting-aside application therefore had to fail, and the proper course was the appeal against the July 5 dismissal itself, which was taken.
Whether the trial judge observed the rules of natural justice on July 5, 1983
He did not. The respondents' counsel was not even heard on the adjournment application, and the plaintiff's counsel offered no evidence under extreme but unfair pressure from the Bench; justice, though possibly done, was not seen to be done.
The record shows the judge refused the application abruptly and hostilely, made remarks about the court being taken for granted, and did not allow Mr Satchu an opportunity to be heard on the adjournment. Chambers discussions about settlement went unrecorded. The judge was anxious to dispose of the suit without giving the parties an opportunity to be heard, a cardinal rule of natural justice.
Legal principles established
#- A court should deny a party a hearing only as a last resort, even where the party's advocate is at fault for non-attendance or lack of preparedness
- An appellate court will not interfere with a trial judge's exercise of discretion to refuse an adjournment unless the judge acted on wrong principles or exercised his discretion unjudiciously
- Where counsel, on being refused an adjournment, remains in court and elects to offer no evidence, the proceedings are not ex parte and no setting aside under order IX B lies
- Unnecessary adjournments should be discouraged, but not at the expense of fairness and the proper administration of justice
Court orders
#- 1.Appeal against the decision of July 5, 1983 dismissing the suit allowed
- 2.Order dismissing the suit of July 5, 1983 set aside
- 3.Suit ordered to be heard by another High Court judge
- 4.Costs of the lower court proceedings of July 5 awarded to the respondents
- 5.Second appeal, Civil Appeal No 89 of 1983, dismissed with costs to the respondents
- 6.Each party to bear their own costs of the first appeal, Civil Appeal No 59 of 1983
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held that the appeal against the order of August 30, 1983 dismissing the application to set aside the dismissal of the suit must fail, since the dismissal of July 5 was not made under order IX B rule 4. However, the appeal against the July 5 dismissal should be allowed: the trial judge's refusal of an adjournment was an incorrect exercise of discretion which denied the plaintiff a hearing and would result in grave injustice, notwithstanding the advocate's fault in advising the client not to attend.
In my judgment, even though the advocate was to blame, the decision of Aragon Ag J if allowed to stand, would result in grave injustice to one of the parties, in that he would be shut out from a hearing of his case.p. 3
Wrote the judgment
Separate concurring judgment. Held that the application to set aside under order IX B rule 8 was misconceived because counsel remained in court and elected to offer no evidence, so the proceedings were not ex parte; but the trial judge exercised his discretion to refuse the adjournment unjudiciously, failed to observe the principles of natural justice, and should have considered an adjournment to the afternoon.
The learned judge should not have been so anxious to dispose of the suit without giving the parties an opportunity to be heard, which is a cardinal rule of natural justice.p. 4
- On appeal from
- High Court of Kenya
- High Court Civil Case No 314 of 1981
- Jurisdiction invoked
- First and second appeals to the Court of Appeal under the applicable appellate provisions; leave for the second appeal granted by the full court on October 14, 1983
- Consolidated with
- Civil Appeal No 89 of 1983
Relief refused
#Appeal against the order of August 30, 1983 dismissing the application to set aside
The July 5 dismissal was not made under order IX B rule 4; the proceedings were not ex parte as counsel elected to offer no evidence while remaining in court
Costs
Costs of the lower court proceedings of July 5 and of the second appeal (No 89 of 1983) to the respondents; each party to bear their own costs of the first appeal
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.
For the foregoing reasons I would allow the appeal against the judge’s decision of July 5, set aside his order dismissing the suit and order it to be heard by another judge.
I would therefore order that each party bear their own costs of the first appeal. As both Chesoni and Nyarangi Ag JJA agree with these results it is so ordered.
As to costs I agree with the orders proposed by Hancox JA in his judgment.
In my judgment, even though the advocate was to blame, the decision of Aragon Ag J if allowed to stand, would result in grave injustice to one of the parties, in that he would be shut out from a hearing of his case.
The granting of an adjournment involves an exercise of a discretion by the presiding judge and this court will not interfere with the presiding judge’s exercise of the discretion unless he has either acted on wrong principles or exercised his discretion unjudiciously
The court should indeed discourage unnecessary adjournments of cases set down for hearing, but that must not be done at the expense of proper and judicious administration of justice with fairness to the parties.
Issues in the judgment
#The concurring judgment of Chesoni Ag JA refers to setting aside the judge's order of 'July 5, 1953' whereas the correct date throughout the judgment is July 5, 1983
The medical witness is referred to as 'Mr Hermant Patel' in the narrative but as 'Mr Hemant Patel' and 'Mr Patel' elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugachia v Mwakibundu [1984] KECA 28 (KLR)", Case Analysis (1984). Civil Appeal No 59 of 1983 (consolidated with Civil Appeal No 89 of 1983). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/28/eng@1984-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.