Magdaline Kisorio v Marry Jepkemboi Kemboi [2022] KEELC 688 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not a case has arisen that requires this court to interfere with the decision of the trial Court in refusing to grant an adjournment
Key legal issues
#Whether the trial court's refusal of an adjournment warranted appellate interference
The appeal was allowed; the trial court misdirected itself in disallowing the adjournment given the age of the case and the reasons advanced, and the respondent could have been compensated by costs
Applying Mbogo v Shah, the court considered whether the trial judge misdirected herself or failed to consider relevant matters. The elements from Job Obanda v Stagecoach require weighing adequacy of reasons, prejudice and compensation by costs. The appellant's counsel sought to join the Land Registrar and amend the defence to include a counterclaim. Considering the age of the case and prior adjournments, the court found the refusal a misdirection, since prejudice could be cured by costs, and ordered a retrial de novo before another magistrate.
Whether the appellant was entitled to a fair hearing under Article 50
The appellant, like the respondent, was entitled to a fair hearing as enshrined in Article 50 of the Constitution, alongside Sections 1A and 1B of the Civil Procedure Act
The court acknowledged the constitutional guarantee of fair hearing and the overriding objective of the Civil Procedure Act. The wide discretion on adjournments must be exercised in a manner that respects these entitlements. Refusing the adjournment where the appellant wished to join an interested party and file a counterclaim, without considering compensation by costs, fell short of that standard.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, because it misdirected itself or failed to consider matters it should have considered, arriving at a wrong conclusion
- In considering adjournments the trial court must weigh the adequacy of reasons given, the prejudice to the other party, and whether that party can be compensated by costs
- Once a suit is set down for hearing it shall not be adjourned unless the applicant satisfies the court that it is just to grant the adjournment (Order 17 Rule 1)
Court orders
#- 1.Appeal allowed
- 2.Order appealed from as well as the decree of the Court issued on 22nd December 2021 set aside
- 3.Order of retrial of the case
- 4.Matter to be heard de novo by any other Court apart from Hon. D. A. Ocharo (PM) who was the Trial Court
- 5.Appellant to have costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Kapsabet
- PMCC No. 33 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over a ruling of the Principal Magistrate's Court (leave to appeal granted at the close of the Respondent's case)
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.
I am satisfied that the Trial Court misdirected itself in disallowing the adjournment,. The Respondent could have been compensated by way of costs.
In the circumstances I proceed to allow the appeal, set aside the order appealed from as well as decree of the Court issued on 22 nd December 2021 and order a retrial of the case.
The matter shall be heard denovo by any other Court apart from Hon. D. A. Ocharo (PM) who was the Trial Court.
Once a suit set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the Court that it just to grant the adjournment.
Issues in the judgment
#Judgment is undated within its body beyond 'THIS DAY OF 21ST MARCH, 2022' - the word indicating day of month appears missing; date inferred as 21 March 2022
Paragraph 5 attributes the first adjournment application to 'Counsel for the Appellant' but earlier text suggests the Respondent was the plaintiff; the naming of Appellant/Respondent roles in the background is loose
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magdaline Kisorio v Marry Jepkemboi Kemboi [2022] KEELC 688 (KLR)", Case Analysis (2022). Appeal from Kapsabet PMCC No. 33 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/688/eng@2022-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.