MWANYANJE NYOKA NDAHUMA VS SAID RAJAB MWANYANJE NYOKA NDAHUMA VS SAID RAJAB

MWANYANJE NYOKA NDAHUMA (suing as administrator

of the estate of MWAMAYA NDAHUMA PANDE) ………………………………….…APPLICANT

VERSUS

SAID RAJAB ………………...…….………………………………………………RESPONDENT

(An Appeal from the ruling of Hon. G. O. Kimanga Principal Magistrate delivered on 13.4.23 in Kilifi SPMCC No. E046 of 2023)

JUDGMENT

The Appellant herein is aggrieved by the ruling of the subordinate court in Kilifi SPMCC No. E046 of 2023 in which the trial Magistrate dismissed his suit for want of prosecution. The trial Magistrate further ordered that the body of the deceased, the subject of the suit, be released to the Respondent for burial as earlier scheduled and that the order be served upon the Superintendent of Kilifi District Hospital. Further orders were that the OCS Jaribuni Police Station, Assistant Chief and Chief, Kauma location and Vinagoni sublocation ensure security and peace during burial.
Following the impugned ruling, the Appeallant filed his appeal dated 2.5.23. The summarized grounds of appeal are that the trial Magistrate erred in law and fact by:
delivering the ruling under the wrong provisions of the law.
dismissing the suit and at the same time making various orders without the existence of the suit.
dismissed the suit within 15 days without considering the principles of natural justice and the law.
granting orders which were not sought by the Respondent.
delivering the ruling per incuriam (without dealing with all issues).
failing to find that injustice would be occasioned to the Appellant if execution was to proceed without hearing the Appellant.
arriving at a decision that was wholly against the weight of evidence.
The Appellant prayed that the Appeal be allowed and that the impugned decision be set aside and that Kilifi SPMCC be heard afresh by a different Magistrate. He also sought costs of the Appeal.
Being a first appeal, this Court is called upon to re-assess and analyze the evidence on record being mindful that it neither saw nor heard the witnesses testify. (See Selle v Associated Motor Boat Co. [1968] EA 123).
The record shows that in his plaint dated 29.3.22, the Appellant sought a permanent injunction restraining the Respondent from burying the remains of his father Chiriba Nyambu Barua (the deceased) on Title No. Vinagoni/Majajani/22 (the suit property). The Appellant’s case was that the deceased had invaded/encroached on the suit property. By a judgment dated 12.10.15 in Mombasa CMC Land Case No. 187 of 2013, the court ordered that the deceased be forcefully evicted from the suit property. Following the demise of the deceased on 20.3.23, the Appellant became aware of plans to bury him on the suit property on 31.3.23. This prompted the Appellant to move to court to stop the burial. Contemporaneously with the plaint, the Appellant filed and application of even date seeking interim orders pending the hearing and determination of the suit. The Respondent filed a defence and a replying affidavit, both dated 3.4.23 in which he denied the Appellant’s allegations. His urged that the Appellant’s suit and application be dismissed with costs.
By a ruling dated 6.4.23, the court granted interim orders and being mindful that the matter concerned a burial dispute, directed that the same be heard and determined on priority basis. Hearing was thus fixed for 12.4.23, 13.4.23 and 14.4.23. The matter did not proceed on 12.4.23 on account of the trial Magistrate being unavailable. On 13.4.23, the Respondent was represented in court but there was no appearance for the Appellant. The trial Magistrate then proceeded to dismiss the suit for want of prosecution.
Parties filed their written submissions which the Court has duly considered.
On grounds 1, 2 and 3, the Appellant submitted that the trial Magistrate’s decision was based on the wrong provisions of the law, namely Order 10 Rule 8 of the Civil Procedure Rules (CPR). Further that the suit having been filed on 30.3.23 and dismissed on 13.4.23, the issue of want of prosecution cannot arise. Additionally, the Appellant submitted that on 12.4.24, the trial Magistrate was away in a seminar. On 13.4.23, both parties attended court but the trial Magistrate dismissed the suit for want of prosecution. The Appellant argued that under Order 17 of the CPR, no suit can be dismissed for want of prosecution before expiry of at least 1 year. Further that a party can apply or the court can issue notice to show cause to concerned parties before dismissal of a suit.
For the Respondent, it was submitted that the trial court dismissed the suit for non-attendance. It was contended that the citing of Order 10 Rule 8 of the Civil Procedure Rules was a typographical error that should not be visited upon an innocent litigant.
The record shows that in the impugned ruling, the trial Magistrate stated:

This is a burial dispute brought under certificate of urgency. The body lies at mortuary and is getting spoilt. There are interim orders enjoyed by the Plaintiff. Maybe that’s why they are reluctant. The matter was given special consid3eration due to the allure (sic) of the same. 3 days back to back hearing. Now the Plaintiff has just vanished to thin air.

Suffice to say such disappearance shall not hold this Court and this trial at ransom. Pursuant to Order 10 Rule 8 of the Civil procedure Rules 2010, I proceed to dismiss this suit for want of prosecution.

It is quite clear from the wording above that the trial Magistrate dismissed the suit for want of prosecution and not for non attendance. Had he intended otherwise, he would have clearly stated so. Further Order 10 Rule 8 of the CPR cited by the trial Magistrate is irrelevant to the matter herein as it makes provision for judgment in default against the Government. In the premises, the Court finds that to the extent that the suit was dismissed for want of prosecution and under the wrong provisions of the law, the trial Magistrate fell into error.
As regards grounds 4 and 5, the Appellant faulted the trial Magistrate for granting orders in a vacuum, without existence of the suit, having dismissed the same. Further that the orders granted had not been sought in the defence or counterclaim. He added that the court did not deal with all issues as no party had testified to warrant the grant of the orders sought. Lastly, on grounds 6 and 7, the Appellant submitted that the ruling occasioned injustice to the Appellant and his family having ordered that the deceased be buried on the suit property the undisputable owner of which is the Appellant’s deceased’s father.
For the Respondent, it was submitted that the Appellant lacked interest in the case and has not demonstrated sufficient cause for failing to attend court. Further that the decision to dismiss a suit for non-attendance is within that wide discretion of the court.
The CPR confer upon the courts, the discretion to dismiss cases for want of prosecution or non attendance, etc. This discretion must however be exercised judicially. Further discretion must be exercised in a manner that achieves the interests of justice. Indeed, in the case of Shah v Mbogo [1967] EA 116, the Court of Appeal stated:

It is the function of the Court to determine whether the interests of justice would be achieved in allowing or refusing an application. In another aspect, it is clear that the process of our judicial system requires that all parties before the Court should be given an opportunity to present their cases before a decision is given.

The Court appreciates that the matter before the trial Magistrate was urgent, being a burial dispute and the body of the deceased lay in the mortuary. This is no doubt why the trial Magistrate fixed the matter for hearing on 3 consecutive days on priority basis. On the first day of hearing i.e. 12.4.23, the Magistrate was engaged elsewhere and the matter did not proceed. On 13.4.23, the Appellant was absent and the trial Magistrate proceeded to dismiss the suit for want of prosecution, stating that the Appellant had vanished into thin air and that the disappearance would not hold the court and the trial at ransom.
The dismissal of suits for want of prosecution is provided for in Order 17 Rule 2 of the Civil Procedure Rules which provides inter alia:

In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.

The law requires that for a suit to be dismissed for want of prosecution, it must have been in limbo with no step taken, for a period of 1 year. Further, a party ought to be given notice to show case why the suit should not be dismissed.
The record shows that the plaint herein was filed on 30.3.23. The suit was dismissed on 13.4.23 for want of prosecution, just about 15 days from the dated of institution. Given that the trial Magistrate had himself missed the first day of hearing, one would have expected some grace to be extended to the Appellant, especially because 14.4.23 was still available for hearing of the matter. While it is not known why the Appellant failed to attend court on 13.4.23, such failure cannot be said to be indicative that he had lost interested in the matter.
In this regard, I associate with Aburili, J. who in Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another [2016] eKLR stated:

Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.

It is well settled that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action. As a court of justice, the trial Magistrate was enjoined to aim at sustaining the suit rather than terminating it by summary dismissal. See D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR. The trial Magistrate ought not to have dismissed the suit just because the Appellant failed to attend court on 13.4.23, which was one of the 3 days set aside for the hearing of the case. Moreso, because the Appellant sought to restrain the Respondent from burying the deceased in the suit property, which the Appellant stated had been adjudged to be owned by his father,
Article 50 of the Constitution guarantees to every person the right to a fair trial. Clause (1) 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. The Appellant had the right to have his suit heard and determined on merit, by the court below. In the premises, I do find that, given its ramifications, the order of the trial court dismissing the suit in its entirety for want of prosecution was drastic and unjustifiable.
I now turn to the claim that the trial court granted orders not sought. It is the Appellant’s case that after dismissal of the suit, the trial court granted orders in favour of the Respondent, which were not sought.
The record shows that the trial court made the following orders:

Orders issued herein earlier are all vacated.

Body of the deceased to be released to the Defendant for burial as earlier scheduled.

Orders be served upon the Superintendent Kilifi District Hospital and the OCS Jaribuni Police Station, Assistant Chief and Chief Kauma Location and Vinagoni Sublocation to ensure security and peace during the burial. No order as to costs.

It is trite law that parties are bound by their pleadings. In the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR, the Court of Appeal held as follows;

As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce. The learned Judge, no matter how well-intentioned, went well beyond the grounds raised by the petitioners and answered by the respondents before her and thereby determined the petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the appeal succeeds on that score.

Just as parties are bound by their pleadings, courts also are bound by the pleadings before them and may only adjudicate on the basis of the said pleadings. In David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR, the Court of Appeal stated:

The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice.

The Court has carefully looked at the defence and replying affidavit dated 3.4.23, filed by the Respondent in opposition to the plaint and application. The only prayer sought therein is that the suit and application be dismissed with costs. There was no prayer by way of counterclaim, for release of the body of the deceased to the Respondent. There was also no prayer for any order granted to be served upon the Superintendent Kilifi District Hospital. Additionally, the Respondent did not seek that security be provided during the burial. In the premises, by granting orders not sought, the trial court acted completely out of character for pronouncing itself as it did, on a claim not made by the Respondent which resulted in a miscarriage of justice by which the Appellant is aggrieved. The trial court thus committed a reversible error, and the Appeal succeeds on that score.
In the end and in view of the foregoing, I find that the Appeal is merited and make the following orders:
- - 1. The ruling of the trial Magistrate delivered on 13.4.23 is hereby set aside.
    2. Kilifi SPMCC No. 046 of 2023 shall be heard afresh by a Magistrate other than Hon. G. O. Kimanga.
    3. The Appellant shall have costs of this Appeal.

DATED, SIGNED and DELIVERED in MALINDI this 20^th day of December 2024