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The appellant in this matter was aggrieved by the decision of the learned Hon. Magistrate to suo moto reopen the case for the petitioners when the matter had been reserved for judgment.
The appellant contends that the action by the learned Hon. Magistrate was wrong in law and has appealed on the following grounds;-
THAT the learned magistrate erred in law and fact in re-opening a matter which had been heard and concluded and was only pending judgement
THAT the learned magistrate erred in law and fact in re-opening a matter while no formal application or application for review against or of closing the case had been lodged by either party in the file.
THAT the learned magistrate erred in law and fact in ordering that the respondent herein files other statements and calls other witnesses in a case already heard and closed.
THAT the learned magistrate erred in law and fact by ignoring the submissions by the appellant and in the file for over 9 months and entertaining the respondent who had ignored the court orders to file submissions for a similar period of time.
THAT the learned magistrate erred in law and fact in abusing her discretion by allowing the abuse of the process of the court by the respondent.
The appellant has filed submissions in support of the appeal whereas the respondents indicated at the hearing of the appeal that they did not wish to file any submissions but would instead rely on their affidavit filed in the matter in answer to the appeal.
The court is thus called upon to determine whether the learned honorable magistrate’s decision to reopen the matter was tenable in law considering that there was no formal application for the matter to be reopened.
The background of this appeal is that KARATINA SUCC CASE NO. 39 OF 2018 was heard and both the protestors case and petitioners case closed on 16.1:2019. The court then ordered that the parties file and exchange their written submissions with a mention on 13.2.2019 to confirm the filing of the submissions.
The protestor filed his submissions on 29.1.2019 and served the same upon the advocates for the petitioner.
When the matter came up for mention on 13.2.2019, the petitioner had not filed his submissions and were absent. The protestors through Mr Kamwenji informed the court that they had filed their submissions and requested for a date for Judgment.
The court did not grant the date for judgment as requested by counsel but instead recorded;- ‘’No submissions have been filed by either party. Upon looking at the file and studying it is prudent that the chiefs be summoned to testify to enable the court make a decision. Therefore summons to issue to the chief Ruguru location. Hearing on the 10.4.19. Hearing Notice to issue.’’
The statement by the court and the order for summoning of the chief was made by the court without invitation by either party. It is therefore not clear from the record what was the basis for the order by the court.
The matter once again came up on 26.9.2019, and Mrs Wahome for the petitioners told the court that they wanted to reopen the case and call two more witnesses and the matter proceeds from where it had reached.
Mr Kamwenji for the protestors vehemently opposed the application and indicated to Hon, A. Mwangi P.M who had taken over the matter from Hon. K.M.Njalale SRM, that it was his predecessor who had on his own motion stated that the Chief would be summoned.
The protesters contend that despite their objection, the court allowed the re-opening of the case well over nine months after the protestor had filed and served his submissions.
According to the protester the petitioner had not filed his submissions and that remains so to date three years down the line.
From the above the appellant submits that the approach used by the petitioner and adopted by the court was all wrong. No formal application was ever filed to detail why the petitioner wanted to call extra witnesses after the case had already been heard and closed, only a suggestion was put to the court in these words;-"we shall be calling two more witnesses"
This in the appellants submissions was an abuse of the court process by the Advocates of the petitioner and that such abuse should not be allowed to stand.
The protestor went on to submit that they had nothing to reply to since there was no formal application made to the court for the calling of the additional witnesses.
The appellant further argued that, by allowing such a "ridiculous" application to stand, that would amount to a total abuse of judicial discretion by the court.
Further, the appellant contended that the court’s duty is to ensure that due process is followed.
The appellant urged this court to find that by allowing the application in the manner it did, the court prejudiced the appellant. Such abuse of the court''s discretion in the appellant''s submissions should also not be allowed to stand.
The appellant’s contention is that in exercising the discretion to reopen a case, it should be done judiciously and according to the appellant;-
a). There should be an application made to allow the other party respond.
b). The application should be give convincing reasons why the re-opening is sought.
c). The reasons should not be ones that seek to fill gaps exposed in the submissions of the other party.
d). The reopening should not be allowed to prejudice one party.
e). That justice should be allowed to cut both ways.
21. The appellant further argued that he is entitled to a fair hearing; one that is not bungled up in an effort to deny him justice. The appellant relied on the case of NYERI ELC CASE NO. 70 OF 2012 (Odoyo Osodo V.S RAEL OBARA OJUOK AND 4 OTHERS [2017] eKLR in support of their case.
22. The appellant therefore urged the court to allow the appeal with costs.
23. The respondents to this appeal did not file any submissions and upon this court enquiring from Mrs Wahome she confirmed that they did not intend to file any submission thus the court was left to consider the record and the submissions of the appellant.
ANALYSIS AND DETERMINATION .
24. The appeal by the appellant basically challenges the exercise of judicial discretion by a trial court.
25. For the appellant to succeed he must be able to demonstrate that the trial court improperly exercised its discretion and in doing so arrived at a wrong finding in law.
26. The court must be shown to have misdirected itself in the application of the law in the matter in issue and that the decision arrived at was and is unsustainable in law. See the case of Mbogo Vs Shah (1968) at page 93
27. The appellant contends that by the trial court entertaining an application to reopen the matter after parties had closed their respective case, the action of the court was prejudicial to the appellants.
29. The record clearly indicates the trial Magistrate K.M Njalale SRM made an order for the summoning of the Chief without any application being made for the calling of the chief by either party. This court finds that that order was made without hearing the parties on the issue. It is important to indicate first that even if the court felt that in the interests of justice, the chief was an important witness who had been excluded by the parties, the court ought to have raised the matter with the parties and heard them on the same.
30.The case belongs to the parties and not the court. The court is a neutral arbiter and it must not only be seen to be so but must also demonstrate its neutrality throughout the proceedings.
31. The aspect of neutrality and independence of the court must be manifest throughout the proceedings otherwise to act otherwise would be to invite accusations of bias which may be real or perceived. Perceptions are important in maintaining the integrity of the court and public confidence is waned whenever a court acts unilaterally and makes decisions without involvement of the parties which decision might eventually impact on the outcome of the case.
32. The decision on who call as a witness in support of one’s case is for party. The court cannot impose a witness on either party. The action of the trial magistrate was therefore wrong in deciding to summon the chief without hearing the parties on that particular issue. The court in effect descended into the arena of a trial without invitation since there was no application to summon the chief.
33. The right to be heard is protected under Article 50 of the Constitution it is an inalienable right. It is a cardinal principle that is protected under Article 25 of the Constitution. The parties to a suit must be heard on those matters that affect the justice of their case and the nature of evidence to be called is such an important that the court cannot arrogate itself the role to determine without violating the fair hearing rights of a party.
34. The court in Andrew Nthiwa Muthuku v Court of Appeal & 3 others [20211eKLR considered the question of the right to be heard holding that it should not be taken away lightly since it is a basic natural justice concept. The rules of natural justice also require that a party be heard before any decision that is likely to affect them is made.
35. The trial court did not observe this critical rule of natural justice thus its decision cannot survive the scrutiny of this court on grounds of fairness.
36. In Lucy Wanjiku Gitumbi & another v Dedan Kimathi University of Technology [2016] eKLR the court stressed the importance of giving students the opportunity to cross examine their accusers and said that:
There is absolutely no reason why the applicant students were never accorded an opportunity to cross examine their accusers which I consider was essential to due process as it is inevitably a factor which the court will consider in determining the overall fairness of an administrative proceeding, even though the hearing was not conducted by persons experienced in legal process.
37. The court emphasized on the need to have anyone who is likely to be negatively affected by the decision of any judicial or quasi -judicial tribunal heard.
See also Okiro v Multimedia University of Kenya (Cause E606 of 2023) [2024] KEELRC 2115 (KLR) (26 July 2024) (Ruling)
38. It is trite law that the Court retains discretion to allow re-opening of a case and such discretion must be exercised judiciously. Further, in exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party.
39. The trial court could not properly in law make the decision that the chief was a necessary witness for it to be able to make a decision without hearing the parties.
40. The petitioners when they later decided to move the allow the calling of additional witnesses as indicated by Mrs Wahome, the court should have required them to file a formal application in order to afford the protestor an opportunity to respond.
41. Reopening of a case is not an automatic right to a party. The party intending to have the court exercise its discretion in its favor must be able to advance good grounds to warrant the granting if such an order. The party should be able to persuade the court that there is discovery of an important piece of evidence that the party could not through the exercise of due diligence have discovered before the closure of the party’s case. The court’s inherent powers to make orders necessary for the ends of justice or to prevent the abuse of the process of the court should not be whimsically exercised. The invocation of that power must be preceded by a consideration of the following;-
a). The stage of the proceedings.
b). The nature of the evidence sought to be adduced.
c). The potential prejudice to the other party
42. The reopening of a case is not a routine matter and should only be invoked in exceptional circumstances where the bona fides of the applicant must be demonstrated. The order for reopening of a case must be meant to achieve the greater goals of justice and should not be issued where the same is likely to prejudice the opposing party. The scales of justice must be evenly balanced so that neither party is subjected to an unfair process that might culminate in an unjust result.
43. The application for reopening the case must present a compelling reason to reopen because such an order is also likely to cause unnecessary delays in the conclusion matters.
44. The application for reopening must be made with due diligence and should not be intended to delay the trial. Courts are cautious about reopening cases, especially at advanced stages like post-evidence such as in this case. A party who has sensed defeat should not be given the latitude to delay his date with fate. The party must be able to explain convincingly why they were not able to call the intended witnesses in the first place.
45. The finality principle in litigation must be upheld save in those case where a party has presented a compelling case to justify reopening more so where the matter is reserved for judgment. The court should be able to consider the application whether the application should be entertained in the first place.
46. The court on receipt of an application by a party to reconsider a final judgment and or order, it would be often a useful mental discipline, reflective of the strength of the finality principle, for the court to ask itself whether the application should even be entertained at all before troubling the other party with it or even giving directions for hearing. It could be a perfectly appropriate judicial response just to refuse the application in limine after it had been received and read. If there was no real prospect that the application could succeed. See Federal Airports Authority of Nigeria Vs AIC ltd [2022] UKSC 16. The applicant must be able to demonstrate that the application has merit and might succeed prima facie.
47. The respondents in this appeal did not file a formal application and even at the oral hearing provided no reasons for wanting to call the additional witnesses. The nature of the evidence they intended to tender was also not disclosed. The court acted on the whim of the respondents thereby prejudicing the appellant. ‘
48. The finding of this court is that there was absolutely no basis for ordering the reopening of the case and thus the order by the magistrate was bad in law.
The appeal therefore succeeds in its entirety the order reopening the matter is accordingly reversed and the matter shall proceed from where the Hon. Magistrate K.M. Njalale left on 13 th February 2019.
49. The matter should go to judgment before the lower court without any further ado. The appeal is allowed with costs.
The lower court file is to be immediately transmitted to the lower court for finalization of the matter.
50. It is so ordered.
'
The appellant in this matter was aggrieved by the decision of the learned Hon. Magistrate to suo moto reopen the case for the petitioners when the matter had been reserved for judgment.
The appellant contends that the action by the learned Hon. Magistrate was wrong in law and has appealed on the following grounds;-
THAT the learned magistrate erred in law and fact in re-opening a matter which had been heard and concluded and was only pending judgement
THAT the learned magistrate erred in law and fact in re-opening a matter while no formal application or application for review against or of closing the case had been lodged by either party in the file.
THAT the learned magistrate erred in law and fact in ordering that the respondent herein files other statements and calls other witnesses in a case already heard and closed.
THAT the learned magistrate erred in law and fact by ignoring the submissions by the appellant and in the file for over 9 months and entertaining the respondent who had ignored the court orders to file submissions for a similar period of time.
THAT the learned magistrate erred in law and fact in abusing her discretion by allowing the abuse of the process of the court by the respondent.
The appellant has filed submissions in support of the appeal whereas the respondents indicated at the hearing of the appeal that they did not wish to file any submissions but would instead rely on their affidavit filed in the matter in answer to the appeal.
The court is thus called upon to determine whether the learned honorable magistrate’s decision to reopen the matter was tenable in law considering that there was no formal application for the matter to be reopened.
The background of this appeal is that KARATINA SUCC CASE NO. 39 OF 2018 was heard and both the protestors case and petitioners case closed on 16.1:2019. The court then ordered that the parties file and exchange their written submissions with a mention on 13.2.2019 to confirm the filing of the submissions.
The protestor filed his submissions on 29.1.2019 and served the same upon the advocates for the petitioner.
When the matter came up for mention on 13.2.2019, the petitioner had not filed his submissions and were absent. The protestors through Mr Kamwenji informed the court that they had filed their submissions and requested for a date for Judgment.
The court did not grant the date for judgment as requested by counsel but instead recorded;- ‘’No submissions have been filed by either party. Upon looking at the file and studying it is prudent that the chiefs be summoned to testify to enable the court make a decision. Therefore summons to issue to the chief Ruguru location. Hearing on the 10.4.19. Hearing Notice to issue.’’
The statement by the court and the order for summoning of the chief was made by the court without invitation by either party. It is therefore not clear from the record what was the basis for the order by the court.
The matter once again came up on 26.9.2019, and Mrs Wahome for the petitioners told the court that they wanted to reopen the case and call two more witnesses and the matter proceeds from where it had reached.
Mr Kamwenji for the protestors vehemently opposed the application and indicated to Hon, A. Mwangi P.M who had taken over the matter from Hon. K.M.Njalale SRM, that it was his predecessor who had on his own motion stated that the Chief would be summoned.
The protesters contend that despite their objection, the court allowed the re-opening of the case well over nine months after the protestor had filed and served his submissions.
According to the protester the petitioner had not filed his submissions and that remains so to date three years down the line.
From the above the appellant submits that the approach used by the petitioner and adopted by the court was all wrong. No formal application was ever filed to detail why the petitioner wanted to call extra witnesses after the case had already been heard and closed, only a suggestion was put to the court in these words;-"we shall be calling two more witnesses"
This in the appellants submissions was an abuse of the court process by the Advocates of the petitioner and that such abuse should not be allowed to stand.
The protestor went on to submit that they had nothing to reply to since there was no formal application made to the court for the calling of the additional witnesses.
The appellant further argued that, by allowing such a "ridiculous" application to stand, that would amount to a total abuse of judicial discretion by the court.
Further, the appellant contended that the court’s duty is to ensure that due process is followed.
The appellant urged this court to find that by allowing the application in the manner it did, the court prejudiced the appellant. Such abuse of the court''s discretion in the appellant''s submissions should also not be allowed to stand.
The appellant’s contention is that in exercising the discretion to reopen a case, it should be done judiciously and according to the appellant;-
a). There should be an application made to allow the other party respond.
b). The application should be give convincing reasons why the re-opening is sought.
c). The reasons should not be ones that seek to fill gaps exposed in the submissions of the other party.
d). The reopening should not be allowed to prejudice one party.
e). That justice should be allowed to cut both ways.
21. The appellant further argued that he is entitled to a fair hearing; one that is not bungled up in an effort to deny him justice. The appellant relied on the case of NYERI ELC CASE NO. 70 OF 2012 (Odoyo Osodo V.S RAEL OBARA OJUOK AND 4 OTHERS [2017] eKLR in support of their case.
22. The appellant therefore urged the court to allow the appeal with costs.
23. The respondents to this appeal did not file any submissions and upon this court enquiring from Mrs Wahome she confirmed that they did not intend to file any submission thus the court was left to consider the record and the submissions of the appellant.
ANALYSIS AND DETERMINATION .
24. The appeal by the appellant basically challenges the exercise of judicial discretion by a trial court.
25. For the appellant to succeed he must be able to demonstrate that the trial court improperly exercised its discretion and in doing so arrived at a wrong finding in law.
26. The court must be shown to have misdirected itself in the application of the law in the matter in issue and that the decision arrived at was and is unsustainable in law. See the case of Mbogo Vs Shah (1968) at page 93
27. The appellant contends that by the trial court entertaining an application to reopen the matter after parties had closed their respective case, the action of the court was prejudicial to the appellants.
29. The record clearly indicates the trial Magistrate K.M Njalale SRM made an order for the summoning of the Chief without any application being made for the calling of the chief by either party. This court finds that that order was made without hearing the parties on the issue. It is important to indicate first that even if the court felt that in the interests of justice, the chief was an important witness who had been excluded by the parties, the court ought to have raised the matter with the parties and heard them on the same.
30.The case belongs to the parties and not the court. The court is a neutral arbiter and it must not only be seen to be so but must also demonstrate its neutrality throughout the proceedings.
31. The aspect of neutrality and independence of the court must be manifest throughout the proceedings otherwise to act otherwise would be to invite accusations of bias which may be real or perceived. Perceptions are important in maintaining the integrity of the court and public confidence is waned whenever a court acts unilaterally and makes decisions without involvement of the parties which decision might eventually impact on the outcome of the case.
32. The decision on who call as a witness in support of one’s case is for party. The court cannot impose a witness on either party. The action of the trial magistrate was therefore wrong in deciding to summon the chief without hearing the parties on that particular issue. The court in effect descended into the arena of a trial without invitation since there was no application to summon the chief.
33. The right to be heard is protected under Article 50 of the Constitution it is an inalienable right. It is a cardinal principle that is protected under Article 25 of the Constitution. The parties to a suit must be heard on those matters that affect the justice of their case and the nature of evidence to be called is such an important that the court cannot arrogate itself the role to determine without violating the fair hearing rights of a party.
34. The court in Andrew Nthiwa Muthuku v Court of Appeal & 3 others [20211eKLR considered the question of the right to be heard holding that it should not be taken away lightly since it is a basic natural justice concept. The rules of natural justice also require that a party be heard before any decision that is likely to affect them is made.
35. The trial court did not observe this critical rule of natural justice thus its decision cannot survive the scrutiny of this court on grounds of fairness.
36. In Lucy Wanjiku Gitumbi & another v Dedan Kimathi University of Technology [2016] eKLR the court stressed the importance of giving students the opportunity to cross examine their accusers and said that:
There is absolutely no reason why the applicant students were never accorded an opportunity to cross examine their accusers which I consider was essential to due process as it is inevitably a factor which the court will consider in determining the overall fairness of an administrative proceeding, even though the hearing was not conducted by persons experienced in legal process.
37. The court emphasized on the need to have anyone who is likely to be negatively affected by the decision of any judicial or quasi -judicial tribunal heard.
See also Okiro v Multimedia University of Kenya (Cause E606 of 2023) [2024] KEELRC 2115 (KLR) (26 July 2024) (Ruling)
38. It is trite law that the Court retains discretion to allow re-opening of a case and such discretion must be exercised judiciously. Further, in exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party.
39. The trial court could not properly in law make the decision that the chief was a necessary witness for it to be able to make a decision without hearing the parties.
40. The petitioners when they later decided to move the allow the calling of additional witnesses as indicated by Mrs Wahome, the court should have required them to file a formal application in order to afford the protestor an opportunity to respond.
41. Reopening of a case is not an automatic right to a party. The party intending to have the court exercise its discretion in its favor must be able to advance good grounds to warrant the granting if such an order. The party should be able to persuade the court that there is discovery of an important piece of evidence that the party could not through the exercise of due diligence have discovered before the closure of the party’s case. The court’s inherent powers to make orders necessary for the ends of justice or to prevent the abuse of the process of the court should not be whimsically exercised. The invocation of that power must be preceded by a consideration of the following;-
a). The stage of the proceedings.
b). The nature of the evidence sought to be adduced.
c). The potential prejudice to the other party
42. The reopening of a case is not a routine matter and should only be invoked in exceptional circumstances where the bona fides of the applicant must be demonstrated. The order for reopening of a case must be meant to achieve the greater goals of justice and should not be issued where the same is likely to prejudice the opposing party. The scales of justice must be evenly balanced so that neither party is subjected to an unfair process that might culminate in an unjust result.
43. The application for reopening the case must present a compelling reason to reopen because such an order is also likely to cause unnecessary delays in the conclusion matters.
44. The application for reopening must be made with due diligence and should not be intended to delay the trial. Courts are cautious about reopening cases, especially at advanced stages like post-evidence such as in this case. A party who has sensed defeat should not be given the latitude to delay his date with fate. The party must be able to explain convincingly why they were not able to call the intended witnesses in the first place.
45. The finality principle in litigation must be upheld save in those case where a party has presented a compelling case to justify reopening more so where the matter is reserved for judgment. The court should be able to consider the application whether the application should be entertained in the first place.
46. The court on receipt of an application by a party to reconsider a final judgment and or order, it would be often a useful mental discipline, reflective of the strength of the finality principle, for the court to ask itself whether the application should even be entertained at all before troubling the other party with it or even giving directions for hearing. It could be a perfectly appropriate judicial response just to refuse the application in limine after it had been received and read. If there was no real prospect that the application could succeed. See Federal Airports Authority of Nigeria Vs AIC ltd [2022] UKSC 16. The applicant must be able to demonstrate that the application has merit and might succeed prima facie.
47. The respondents in this appeal did not file a formal application and even at the oral hearing provided no reasons for wanting to call the additional witnesses. The nature of the evidence they intended to tender was also not disclosed. The court acted on the whim of the respondents thereby prejudicing the appellant. ‘
48. The finding of this court is that there was absolutely no basis for ordering the reopening of the case and thus the order by the magistrate was bad in law.
The appeal therefore succeeds in its entirety the order reopening the matter is accordingly reversed and the matter shall proceed from where the Hon. Magistrate K.M. Njalale left on 13 th February 2019.
49. The matter should go to judgment before the lower court without any further ado. The appeal is allowed with costs.
The lower court file is to be immediately transmitted to the lower court for finalization of the matter.
50. It is so ordered.
'