BENSON MWANIKI NJOGU VS DICKSON FUNDI AND PATRICK FUNDI KARIUKI

(Appeal arising from the decision of Hon. H. N. Nyakweba, SPM in Embu CMCC No. 49 of 2018 delivered on 28^th February 2023)

1. The appellant filed an undated memorandum of appeal seeking the following orders:
   1. That the appeal be allowed;
   2. That the honourable court be pleased to re-open the appellant’s case against the respondents for purposes of producing the appellant’s medical report and P3 form;
   3. The appellant be awarded costs of this appeal; and
   4. Any other order in the interest of justice.
2. The appeal is premised on the grounds that the learned trial magistrate erred in law and fact:
   1. By dismissing the appellant’s application dated 10^th January 2023 and therefore failing to reopen the plaintiff’s case despite the overwhelming grounds that were adduced supporting the same;
   2. By failing to consider the grounds as deposed in the supporting affidavit sworn on 10^th January 2023 by Shem Kebongo in support of the appellant’s application dated 10^th January 2023 thus coming up with an erroneous finding;
   3. By finding that the grounds as contained in the appellant’s application are false and misleading despite the same having been sworn by the appellant’s advocate and there being overwhelming evidence on record; and
   4. By making findings which are not supported by evidence on record.
3. The background of this matter is that the appellant had filed a plaint dated 27^th March 2018 seeking judgment against the respondents for general and special damages and costs with interest for negligence resulting in injuries from a road traffic accident. The matter proceeded to hearing during which the appellant called 2 witnesses. The 3^rd witness was a doctor who was not available but the appellant’s advocate sought that the file be placed aside to allow the doctor to testify virtually. When the matter was called out again, the appellant’s advocates stated that the witness is held up at a gender-based violence seminar and is unable to join the court session virtually. This position was contested by the respondents who also did not have any witness.
4. The trial court closed the plaintiff’s case. This order prompted the appellant to file an application dated 10^th January 2023 seeking review of its orders given on 22^nd November 2022 closing the plaintiff’s case. This application was determined through the trial court’s ruling delivered on 28^th February 2023 dismissing it with costs to the defendants. In it, the trial magistrate took issue with the fact, among others, that the supporting affidavit to the application was sworn by a different advocate from the one who was in court on the day the order was made. This ruling is the subject of this appeal.
5. In this appeal, the court directed the parties to file their written submissions but none of them complied.
6. The issue for determination is whether the appeal has merit.
7. From the trial court proceedings on 27^th July 2021, the plaintiff’s witness, the doctor, was not available and the trial court gave the last adjournment. When the matter was mentioned on 09^th November 2021, Ms. Abutika held brief for Mr. Kebonge and the matter was listed for hearing on 22^nd March 2022. On this hearing date, Mr. Adima appeared for the plaintiff and he indicated to the court that the doctor was still not available to testify but the police officer (PW2) was ready and he testified.
8. That parties agreed to have a further hearing on 22^nd November 2022, on which date Ms Adongo held brief for Mr. Adima for the plaintiff. Ms. Adongo informed the court that the doctor was not available to testify as he was held up in a training. The file was placed aside for the defendant’s advocate to arrive and when it was called out again, the plaintiff’s advocate stated that the doctor was not available to even join the session virtually. This did not sit well with the defendants’ advocate. The court ordered that ‘in the absence of any witness on the part of the plaintiff, the case is hereby deemed as closed’.
9. In his ruling, the trial magistrate indicated that if anyone was to depose the supporting affidavit, it ought to have been Ms. Adongo, the advocate who was present in court when the impugned order was given. Up to the time of the order in question, the plaintiff had been represented by Ms, Mutegi, Mr. Marete, Mr. Adima, Mr. Odhiambo, Ms. Abutika and Ms. Adongo all holding brief for Mr. Shem Kebongo.
10. Counsel holding brief for each other is not an uncommon practice. It is a way of the representing advocate making an effort to appear albeit by proxy so that his presence is registered by the court. The practice is accepted and well appreciated to keep the wheels of justice moving. When an advocate holds brief for another, it does not mean that the representing advocate ceases t have conduct of the matter on behalf of his client. It simply means that the representing counsel is unavailable for the moment and the counsel holding brief is standing in his place briefly. In the Nigerian case of MFA v. Inongha (2014) NWLR (Pt. 1397) P. 343 at 369 the court held thus on the effect of holding brief practice:

“when counsel announces appearance, whether as holding brief for another counsel or not, he is presumed to have full briefing and authority to do the case…”

1. That being said, there was nothing wrong with Mr. Shem Kebongo deposing the supporting affidavit to the application since his client was still represented by Ms. Adongo on his behalf. In the supporting affidavit, Mr. Kebongo narrated the events that happened in court acknowledging that there was another counsel present for the plaintiff on that day. He produced proof of conversation between himself and the doctor and he provided a schedule for GBV training in several counties including Muranga. From the conversation it is not clear whether the doctor was facilitating or attending the seminars and he did not express the reason for his difficulty to attend court besides the fact that he would be away.
2. The trial court was not persuaded by this evidence, neither is this court. However, Article 48 of the Constitution of Kenya 2010 guarantees every person the right of access to justice. Further, Article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. More importantly, Article 159(2) of the Constitution guides this court in application of discretion in order to serve justice to all parties in this matter. I am therefore inclined to grant the appeal only on the strength of the Constitution which is the supreme law of the land.
3. Further, justice is meant to serve both the appellant and the respondents herein. Which is why the appellant should be allowed to fully ventilate his case to the ends of justice. At the same time, I am reminded of the role of the court in administration of justice as stated in the case of Kamuti v Kariuki (Miscellaneous Civil Cause E001 of 2023) (2023) where the court observed that:

“The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out unless for a good reason.”

1. The appeal is hereby allowed with orders as follows:
   1. The ruling of the trial court delivered on 28^th February 2023 in Embu CMCC No. 49 of 2018 is hereby set aside;
   2. The plaintiff/appellant’s case is hereby re-opened only for purposes of taking the evidence of the doctor and for production of the medical report and P3 form;
   3. Each party to bear its own costs of the appeal.
2. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.