REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. E108 OF 2025
ONCHOKA EZEKIEL ONCHOKA ….………………………… APPELLANT
VERSUS
TRANSMARA SUGAR CO. LTD …………….………...……. RESPONDENT
( Being an appeal from the Order of Honourable A. Munyuny, Resident Magistrate, In Migori Civil Suit No. E545 OF 2018 issued on the 13 th August, 2025 ).
JUDGMENT
Introduction and Background
1. This appeal arises from the Order of the subordinate court at Migori dated 13 th of August, 2025. The Order dismissed the Plaintiffs claim that was filed against the Defendant vide the plaint dated 30 th July 2018 and filed on the 6 th of August 2018. The Plaintiff being dissatisfied by the Order of the court to dismiss the suit for non-attendance by the Plaintiff.
2. The memorandum of Appeal is dated 4 th of September 2025 and the Appellant has set out two grounds in support of the appeal. The two grounds can be summarised it into one ground being that the trial magistrate failed to consider the reasons given for the absence of the witnesses and proceeded to dismiss the Plaintiffs suit for non-attendance and thus denied the Plaintiff the right to access.
Analysis and Determination.
3. This being a first appeal against the Order of the trial Magistrate made on the 13 th of August, 2025, the court is enjoined to evaluate the decision of the lower court and determine if the orders given were correctly done so. The trial Court having made an Order declining an application for adjournment and dismissed the Plaintiffs suit for non-attendance by the Plaintiff.
4. Granting of an adjournment is a discretionary power granted to the court. The same must however be exercised judiciously and each case will be treated on its own merits.
5. I have considered the grounds of appeal and also the submissions of the respective counsel in this matter. I have also keenly considered the reasons given by the trial court leading to the Order appealed against.
6. First, it is sacrosanct and provided for in the Constitution Article 48 that the right to a fair hearing cannot derogated. A party who has a dispute before the court must be granted the opportunity to present their case, either in support or opposition to their claim. That right does not however extend to adjournments infinitum. That right must also be looked at in th4 prism of the right to an expeditious trial, a right available to both the Plaintiff and the Defendant.
7. As correctly stated by the trial Magistrate, the claim herein was filed in July 2018. From the proceedings availed by the Appellant, after the court gave directions in September 2018, the Plaintiff went quiet until May 2024, when the matter was mentioned with other related matters and directions given for the Plaintiff to have the suit prosecuted within 30 days. This Order was to apply to Civil Suit No. 592 of 2018. A mention was set for 24 th of June 2024. As the trial court was away on that date, the matter was rescheduled to 10 th of July 2024.
8. On the 10 th July 2024, the Defendants filed a Notice of Preliminary Objection disputing the jurisdiction of the court. A ruling was made on the Preliminary Objection on the 30 th August, 2024. Parties were then directed to comply with the pre-trial directions and the matter set for hearing on the 26 th of May 2025. On that date, the Defence counsel was bereaved and the court granted the parties the last adjournment and set the hearing for 13 th of August, 2025. On that date, the Plaintiff’s Counsel stated that he was unable to proceed as he could not reach his witnesses and efforts to physically trace them at Kisii were also unsuccessful. Counsel asked the court for indulgence to trace the Plaintiff.
9. Counsel for the defence, who had two witnesses also stated that they needed to file further documents. He acquiesced to the Plaintiff’s request for indulgence and also sought leave to file the further documents. In a brief determination, the court declined both requests, stating that the Plaintiff had demonstrated lack of interest in prosecuting the matter and proceeded to dismiss the same.
10. In the submissions of the Appellant, they have set out two issues for determination. First, whether the trial court erred in dismissing the suit for non-attendance without considering the reasons advanced for the non-attendance and secondly, whether the dismissal amounted into an improper exercise of the trial courts judicial discretion.
11. The grant of an adjournment by the trial court is a discretionary matter that the court is allowed to exercise its discretion based on the circumstances of each case. While case law and the provision of various statutes, primarily the Civil Procedure Act and the Civil Procedure Rules. In exercising its discretion, the court is generally guided by the dictates of the Constitution on fair trial. The Appellant has cited Articles 48 and 159 (2) (d) . Article 48 of the Constitution is not directly applicable in the current circumstances as it generally deals with the state having an obligation to ensure access to justice for all persons. The state herein is not accused of pending that access for the Appellant as he has not been denied the opportunity to file and prosecute his case.
12. Article 159 (2) (d) of the Constitution on the other hands directs that the courts have an obligation to ensure substantive justice without undue regard to technicalities. The question would be whether the exercise by the court of its jurisdiction in this case was a technical or substantive issue. The parameters of judicial discretion are well articulated in the cited case of United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) eKLR . This determination aligns with the dicta of the Supreme Court cited by the Respondent in Sirma v Independent Electoral and Boundaries Commission & 2 others [2019] KESC 64 (KLR ). A party challenging the courts exercise of its jurisdiction will have to demonstrate that the court went outside the walls built in that decision. the Court had this to say on this Court's power to interfere with judicial discretion:
" The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case (emphasis mine). The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong ."
13. It is clear from the proceedings relied upon by the Appellant that they have been guilty of latches. As seen from the proceedings of 30 th May 2024, the matter had an appeal that was determined in 2019 but between the determination and 30 th May 2024, the Appellant, who was the Plaintiff therein did not take steps to prosecute their suit. Indeed, on that date, the matter had been scheduled for a Notice to Show Cause why it should not be dismissed for want of prosecution. On that date, the court, in its direction sated that the reasons advanced by the Plaintiff, now Appellant were not convincing and reluctantly allowed the Appellant to set down the matter for hearing.
14. A preliminary objection was filed by the Respondents dated 2 nd July 2024. The same was duly determined on the 30 th August, 2024. The same was dismissed and the court directed the matter be set down for hearing on 26 th May 2025. On that date, unfortunately, the defence Counsel was bereaved. The court adjourned the matter to 13 th of August 2025 and marked the adjournment as the last adjournment to the parties.
15. I do not deem as submitted by the Appellant that the trial court acted outside its judicial discretion when it dismissed the suits. The court had granted the parties sufficient accommodation to have the suit prosecuted by the Appellant had not done so.
16. I further note that there is no submission or averment that the Appellants Counsel has not been able to trace the claimants. It would be important to have the Appellant’s Counsel state with clarity that if the matter is reinstated, then the Appellant would be available to proceed with the claim.
17. The trial court correctly noted that the matter is an old matter, filed in 2018. As at today, it has been in the court system for 8 years. That goes against the dictates of Article 159 (2) (b) of the Constitution , where the courts are required to determine matters expeditiously. It would be remiss for the Appellant to rely on Article 159 (2) (d) of the Constitution and turn a blind eye to Article 159 (2) (b) of the same Constitution. Indeed, sub Article 2 (b) should be the first port of call.
18. On the whole, I do not find that the trial court improperly exercised its discretionary powers as alleged by the Appellant. The only lacuna I find in the directions of the court dismissing the suit was the blanket application, including in matters that were related but not in the present file. The trial court ought to have considered each case separately, as it did with CMCC No. E612 of 2018.
19. I will thus proceed to allow the appeal but in strict terms as follows:
a. The dismissal of the suits herein by the order of the trial court dated 13 th August 2025 is hereby set aside accordingly.
b. The Plaintiff to have the suit set down for hearing within 60 days of this order.
c. The suits be heard before any other court apart from Hon. Munyuny.
d. In consideration of the proceedings of 13 th August, 2025, I will direct that each party to bear their costs of the appeal.
e. This order to also apply to HCCA No. E109 of 2025 .
Dated, signed and delivered virtually via Microsoft Teams this 30 th day of June 2026.
HCCA NO. E108 OF 2025 ONCHOKA EZEKIEL ONCHOKA VS TRANSMARA SUGAR CO. LTD JUD Pg. 6
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. E108 OF 2025
ONCHOKA EZEKIEL ONCHOKA ….………………………… APPELLANT
VERSUS
TRANSMARA SUGAR CO. LTD …………….………...……. RESPONDENT
( Being an appeal from the Order of Honourable A. Munyuny, Resident Magistrate, In Migori Civil Suit No. E545 OF 2018 issued on the 13 th August, 2025 ).
JUDGMENT
Introduction and Background
1. This appeal arises from the Order of the subordinate court at Migori dated 13 th of August, 2025. The Order dismissed the Plaintiffs claim that was filed against the Defendant vide the plaint dated 30 th July 2018 and filed on the 6 th of August 2018. The Plaintiff being dissatisfied by the Order of the court to dismiss the suit for non-attendance by the Plaintiff.
2. The memorandum of Appeal is dated 4 th of September 2025 and the Appellant has set out two grounds in support of the appeal. The two grounds can be summarised it into one ground being that the trial magistrate failed to consider the reasons given for the absence of the witnesses and proceeded to dismiss the Plaintiffs suit for non-attendance and thus denied the Plaintiff the right to access.
Analysis and Determination.
3. This being a first appeal against the Order of the trial Magistrate made on the 13 th of August, 2025, the court is enjoined to evaluate the decision of the lower court and determine if the orders given were correctly done so. The trial Court having made an Order declining an application for adjournment and dismissed the Plaintiffs suit for non-attendance by the Plaintiff.
4. Granting of an adjournment is a discretionary power granted to the court. The same must however be exercised judiciously and each case will be treated on its own merits.
5. I have considered the grounds of appeal and also the submissions of the respective counsel in this matter. I have also keenly considered the reasons given by the trial court leading to the Order appealed against.
6. First, it is sacrosanct and provided for in the Constitution Article 48 that the right to a fair hearing cannot derogated. A party who has a dispute before the court must be granted the opportunity to present their case, either in support or opposition to their claim. That right does not however extend to adjournments infinitum. That right must also be looked at in th4 prism of the right to an expeditious trial, a right available to both the Plaintiff and the Defendant.
7. As correctly stated by the trial Magistrate, the claim herein was filed in July 2018. From the proceedings availed by the Appellant, after the court gave directions in September 2018, the Plaintiff went quiet until May 2024, when the matter was mentioned with other related matters and directions given for the Plaintiff to have the suit prosecuted within 30 days. This Order was to apply to Civil Suit No. 592 of 2018. A mention was set for 24 th of June 2024. As the trial court was away on that date, the matter was rescheduled to 10 th of July 2024.
8. On the 10 th July 2024, the Defendants filed a Notice of Preliminary Objection disputing the jurisdiction of the court. A ruling was made on the Preliminary Objection on the 30 th August, 2024. Parties were then directed to comply with the pre-trial directions and the matter set for hearing on the 26 th of May 2025. On that date, the Defence counsel was bereaved and the court granted the parties the last adjournment and set the hearing for 13 th of August, 2025. On that date, the Plaintiff’s Counsel stated that he was unable to proceed as he could not reach his witnesses and efforts to physically trace them at Kisii were also unsuccessful. Counsel asked the court for indulgence to trace the Plaintiff.
9. Counsel for the defence, who had two witnesses also stated that they needed to file further documents. He acquiesced to the Plaintiff’s request for indulgence and also sought leave to file the further documents. In a brief determination, the court declined both requests, stating that the Plaintiff had demonstrated lack of interest in prosecuting the matter and proceeded to dismiss the same.
10. In the submissions of the Appellant, they have set out two issues for determination. First, whether the trial court erred in dismissing the suit for non-attendance without considering the reasons advanced for the non-attendance and secondly, whether the dismissal amounted into an improper exercise of the trial courts judicial discretion.
11. The grant of an adjournment by the trial court is a discretionary matter that the court is allowed to exercise its discretion based on the circumstances of each case. While case law and the provision of various statutes, primarily the Civil Procedure Act and the Civil Procedure Rules. In exercising its discretion, the court is generally guided by the dictates of the Constitution on fair trial. The Appellant has cited Articles 48 and 159 (2) (d) . Article 48 of the Constitution is not directly applicable in the current circumstances as it generally deals with the state having an obligation to ensure access to justice for all persons. The state herein is not accused of pending that access for the Appellant as he has not been denied the opportunity to file and prosecute his case.
12. Article 159 (2) (d) of the Constitution on the other hands directs that the courts have an obligation to ensure substantive justice without undue regard to technicalities. The question would be whether the exercise by the court of its jurisdiction in this case was a technical or substantive issue. The parameters of judicial discretion are well articulated in the cited case of United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) eKLR . This determination aligns with the dicta of the Supreme Court cited by the Respondent in Sirma v Independent Electoral and Boundaries Commission & 2 others [2019] KESC 64 (KLR ). A party challenging the courts exercise of its jurisdiction will have to demonstrate that the court went outside the walls built in that decision. the Court had this to say on this Court's power to interfere with judicial discretion:
" The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case (emphasis mine). The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong ."
13. It is clear from the proceedings relied upon by the Appellant that they have been guilty of latches. As seen from the proceedings of 30 th May 2024, the matter had an appeal that was determined in 2019 but between the determination and 30 th May 2024, the Appellant, who was the Plaintiff therein did not take steps to prosecute their suit. Indeed, on that date, the matter had been scheduled for a Notice to Show Cause why it should not be dismissed for want of prosecution. On that date, the court, in its direction sated that the reasons advanced by the Plaintiff, now Appellant were not convincing and reluctantly allowed the Appellant to set down the matter for hearing.
14. A preliminary objection was filed by the Respondents dated 2 nd July 2024. The same was duly determined on the 30 th August, 2024. The same was dismissed and the court directed the matter be set down for hearing on 26 th May 2025. On that date, unfortunately, the defence Counsel was bereaved. The court adjourned the matter to 13 th of August 2025 and marked the adjournment as the last adjournment to the parties.
15. I do not deem as submitted by the Appellant that the trial court acted outside its judicial discretion when it dismissed the suits. The court had granted the parties sufficient accommodation to have the suit prosecuted by the Appellant had not done so.
16. I further note that there is no submission or averment that the Appellants Counsel has not been able to trace the claimants. It would be important to have the Appellant’s Counsel state with clarity that if the matter is reinstated, then the Appellant would be available to proceed with the claim.
17. The trial court correctly noted that the matter is an old matter, filed in 2018. As at today, it has been in the court system for 8 years. That goes against the dictates of Article 159 (2) (b) of the Constitution , where the courts are required to determine matters expeditiously. It would be remiss for the Appellant to rely on Article 159 (2) (d) of the Constitution and turn a blind eye to Article 159 (2) (b) of the same Constitution. Indeed, sub Article 2 (b) should be the first port of call.
18. On the whole, I do not find that the trial court improperly exercised its discretionary powers as alleged by the Appellant. The only lacuna I find in the directions of the court dismissing the suit was the blanket application, including in matters that were related but not in the present file. The trial court ought to have considered each case separately, as it did with CMCC No. E612 of 2018.
19. I will thus proceed to allow the appeal but in strict terms as follows:
a. The dismissal of the suits herein by the order of the trial court dated 13 th August 2025 is hereby set aside accordingly.
b. The Plaintiff to have the suit set down for hearing within 60 days of this order.
c. The suits be heard before any other court apart from Hon. Munyuny.
d. In consideration of the proceedings of 13 th August, 2025, I will direct that each party to bear their costs of the appeal.
e. This order to also apply to HCCA No. E109 of 2025 .
Dated, signed and delivered virtually via Microsoft Teams this 30 th day of June 2026.
HCCA NO. E108 OF 2025 ONCHOKA EZEKIEL ONCHOKA VS TRANSMARA SUGAR CO. LTD JUD Pg. 6