Josephine Ndenyi v Vishak Builders Ltd [2015] KEHC 1369 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.245 OF 2015

JOSEPHINE  NDENYI……………………………………..PLAINTIFF

VERSUS

VISHAK BUILDERS LTD ….…..………………………..  DEFENDANT

RULING

Before me for determination is an application dated 7th September 2015 brought under certificate of urgency, pursuant to the provisions of Section 1A.  1B, 3A and BB of the Civil Procedure Act and Order 51 Rule  1 and 3  of the Civil Procedure Rules.  The application seeks orders

Spent

That this suit be heard on priority basis.

That costs  of the application be provide for

The application is predicated   on the grounds that :

The applicant’s urethra has blocked due to her having been rendered  a permanent  paraplegia  and requires  urgent medical intervention.

That  the applicant urgently requires  finances  to undergo further  medication hence the  need to  have this matter disposed off to enable her  be compensated.

That unless this matter  is heard urgently  to pave way for the applicant’s  compensation, she may suffer irreparably  as her urethra  has now blocked and is posing great  health dangers.

That it is  in the interest of justice.

That the applicant  is out of employment  and has no any other source of earnings.

The  application  is further  supported  by the affidavit  of the plaintiff applicant Josephine Ndenyi  sworn on 7th September 2015.  The applicant  deposes  that she was rendered  95% incapacitated  and a total paraplegia and her urethra  has blocked  calling for urgent  specialized treatment following an accident.

That she  has developed  complications  requiring urgent  medical  intervention  of about  1 million as shown by  hospital  letter; and  she needs to be compensated  so as to enable her  settle  the escalating  medical bills  and acquire  specialized  medial appliances  for her  well being  thus a special  bed, special mattress, diapers, catheters and physiotherapy  as confirmed by Dr Wangata hence she  urges the court to consider  her  circumstances  and hear  her case  on a priority  basis  to enable her get  compensation  since  she is in deplorable  state  of no medicine, food and general upkeep; and that allowing  this application will save  her and  her family from suffering.

The application is opposed  by the  defendant/respondent  who filed  grounds  of opposition  dated  11th September  2015  contending  that the application  wrongly premises  that liability is not  an issue  and that entry  of judgment for the plaintiff is a fait  accompli which  prejudices the defendant’s right to  a fair  hearing.

The defendant  further avers that the filed statement of defence denies  liability and the suit could  fail if  not proved  hence it is not right  for  the plaintiff  to presume  the suit’s outcome  and budget  for compensation  that might never be.  Further, that even if judgment was entered for the plaintiff, the defendant could appeal should it be dissatisfied therewith.

The defendant  maintains  that seeking accelerated  hearing allegedly  so that the plaintiff can get funds for medical  treatment  is too presumptions; no good reason has  been advanced  to justify priority hearing  as sought; and urged  the court to dismiss the application as it lacks merit.

The application was canvassed by way of oral submissions, with Mr Kulecho submitting  on behalf  of the  applicant, relying on the supporting  affidavit  and annextures  of his client.  The plaintiff’s counsel submitted  adding that  the plaintiff was now  unemployed  and has no income to enable her pay  for her medical  bills  and that  in  view  of the specialized  treatment  required  out of the  county, it was only just   that the  suit be prosecuted expeditiously so that she can be compensated  to  enable her attend  to her medical situation  both locally  and in India.  Further, that the plaintiff’s life was in danger and that therefore delayed prosecution of this suit would deny her a chance to receive medical attention.

In response  to the plaintiff’s application, Mr Mege counsel  for the defendant  submitted, relying on the grounds of opposition reproduced  above, vehemently opposing the application and contending   that there  was  no medical evidence  to show that the plaintiff’s life was  in danger, while admitting that indeed  the plaintiff sustained  very serious  injuries.  Mr Mege  submitted  that there  was no evidence  of a blocked  urethra and that  the medical evidence  was therefore  not consistent  with what  was being  alleged in court.  In his view, this application prejudices the defendant’s right to a fair hearing hence the court should disregard   the quest for priority hearing of the same.

In a brief rejoinder, Mr Kulecho for the plaintiff maintained that no prejudice to the defendant had been demonstrated and that the right to a hearing in defence was unfettered.  Further, that the defendant had not sworn any affidavit to counter the plaintiff’s depositions.  He urged the court to allow the plaintiff’s application as prayed.

I have carefully considered the plaintiff’s application, grounds thereof, and supporting affidavit sworn by the plaintiff/applicant.  I have also considered the grounds of opposition filed by the defendant’s counsel, as well as the brief oral rival submissions by both parties’ advocates.  None of which relied on any decided case(s).

The only issue for determination in this application by the plaintiff is whether the plaintiff has demonstrated the need for a hearing of her case on priority basis.

Before I decide the above sole issue, I must examine the pleadings briefly.  By a plaint (fast track) filed in court on 10th July 2015, the plaintiff Josephine Ndenyi instituted suit against the defendant Vishak Builders Ltd, claiming for general damages, special damages, costs of the suit and interest.  The claim is premised on the allegation that  at  all material times  to this suit, she was an employee of the defendant and on 19th March 2015 while  she was carrying out her normal  duties as stipulated by the defendant, she fell  from a height at a construction site as a result of which she  sustained  very serious injuries and  holds the  defendant liable for breach of the statutory  duty of care for :

Failing to provide the plaintiff with safe working equipments.

Exposing the plaintiff to risky working conditions.

The plaintiff claims that she sustained injuries involving: Spinal injury to the lower spine with paraplegia; urine and stool incontinence.

It is further claimed that at the time of the injury, she was being  paid a  monthly salary of kshs  9100 which the  defendant had since  stopped paying her since  March 2015 and that  she require medication and specialized treatment and equipment  for which she claims  compensation from the defendant.

The defendant entered an appearance on 22nd July 2015 and filed defence on 5th August 2015, through the firm of Muchui & Company advocates.

The defendant  admits  in paragraph 3 of the defence that an accident  involving   the plaintiff  did take  place  on 19th march 2015  while she  was carrying  out her normal duties  but denies the plaintiff’s allegations  that the defendant was responsible  or contributed  to the occurrence  of the said accident  by breach of  the statutory duty of care as particularized  by the plaintiff.

The defendant also pleaded that the said accident was wholly caused and or substantially contributed by the negligence of the plaintiff in that she

Failed to exercise reasonable care and attention while performing her duties.

Failed to observe her employer’s clear instructions on how to carry out her work.

Failed to have any regard for her own safety as she went about her work.

Went about her work without due care and attention.

The defendant also denied the allegations that the plaintiff sustained any injuries or suffered loss and damage as alleged.  It also denied the earnings pleaded by the plaintiff.  It also denied the applicability of the doctrine of res Ipsa Loquitur relied on by the plaintiff.

In support of the plaint, the  plaintiff  filed her witness statement, copy of  National Identity card and  copy of  medical report  by Dr. Theophillus  Wangata  confirming  the injuries sustained  by  the plaintiff and  demand notice  of 29th May 2015.  She also filed a list of witnesses who are herself and Dr Wangata.

On 12th August  2015  her advocate filed  reply to defence joining issues with  the defendant  and reiterating  the contents  of her plaint while  denying particulars  of contributory  negligence  attributed to her by the  defendant.

The plaintiff’s counsel also filed a pre trial questionnaire as required under Order 11, Rule 2 of the Civil Procedure Rules.  Annexture JA1 to her affidavit is  an information letter  dated  31st August  2015  to the plaintiff  by Dr  Viraj Shah  of the  spinal clinic in  Shalby Hospital, Ahmedabad India  advising  her that she  was required to undergo  further  evaluation of the spinal  surgery to relieve pressure  from spinal  cord on 20th October  2015 ad 16,000 USD to cover hospital expenses  and post  operative recovery stay other than  travel expenses.

The plaintiff now urges  this court  to expedite  the hearing of  her  suit to enable  her get compensation to  facilitate  her treatment  and upkeep since she is  unemployed and a total paraplegia .

The plaintiff has invoked the overriding objectives of the Civil Procedure Act and inherent jurisdiction of this court for the ends of justice to be met.

Ordinarily, there is absolutely nothing wrong for a party wishing that his or her suit be heard on priority basis.  However, it is not necessary to file a formal application to seek an early hearing date.  All that  the applicant needs to do is  ask for  a mention date  before the Duty Judge and seek a date  on priority basis, and the court, upon  being satisfied  that pleadings  have  closed and  the parties  to the suit  have complied with  all pre-trial requirements  as espoused  in Order 11 of the Civil Procedure  Rules, or where  there has been no full compliance, the court  may direct  that there be compliance  within a specified  period, and may order that the suit be heard on priority basis.

On the other hand, it must be  appreciated  that every litigant who initiates  suit in  court  expects  an expeditious  trial as  espoused in Article  159(2) b that justice  shall be administered without undue delay.  Thus, the Constitution acknowledges that delayed justice is denied justice.  Nonetheless, it must further be appreciated that some cases have some unusual urgency and therefore deserving a priority hearing.  But such  early hearing  must not   disregard  the  procedure  set down by the  Civil Procedure  Rules  that must be complied with before  a matter is set  down for hearing.  Those procedures are necessary for effective hearing of matters and are not mere technicalities capable of being ignored.

Article 159 (2) of the Constitution  was enacted  with the objective  of  promoting  dispensation or administration  of justice to parties, which justice  must  be administered  equally to all parties  irrespective  of status  and provided  that it is  dispensed in a manner  which is not  prejudicial to any party to the suit.

This court, like the Court of   Appeal in Japheth Pasi Kilonga & 8 Others V Mombasa Autocare Ltd (2015) e KLR acknowledges that the single most draw backs in the administration of justice is the delay in the determination of cases, resulting in the overwhelming case backlog, and in most of the delayed cases, they are caused by adjournments.

The learned  Court of Appeal Judges  in the Japheth Pasi Kilonga case (supra) citing with approval Lord  Denning, MR in Fitz  Patrick v Batger & Company Ltd (1967) 2 ALL ER 657  stated, warning that:

“public policy demands that the business of the courts should be conducted with expedition.”

The overriding objectives of Section 1A and 1B of the Civil Procedure Act were also enacted requiring the courts to   facilitate the just, efficient, expeditions, proportionate and affordable resolution of disputes.

Further, Order  17 Rule 1  of the  Civil Procedure Rules  require, as  a general rule, that hearing  of suits once commenced  continue  from day to day.  The said provision stipulates:

“Once the suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the court that it is just to grant the adjournment.

When the court grants an adjournment it shall give a date for further hearing or directions.”

The intention of the above rule in my view, was to expedite justice for the parties that knock on the doors of justice.

Access to justice, as stipulated in Article 48 of the Constitution, can only be realized if parties are granted an enabling environment to ventilate their grievances in court without any hindrance.

In the Tanzanian Court of Appeal decision of Ndyanabo v Attorney General (2001) IEA 485 the court stated:

“Access to courts is, undoubtedly, a cardinal safeguard against violation of one’s rights, whether those are fundamental or not.  Without that right, there can be no rule of law, and no democracy.  A court of law is the last resort of the oppressed and the bewildered.  Anyone seeking a remedy should be able to knock on the doors of justice and be heard.”

The plaintiff in this case is the aggrieved party.  There is no denial that she was injured while in the defendant’s employment which injuries are debilitating.

The defendant has denied liability and that is within his right.  However, it  is a misconception for the defendant to allege  that  expeditious  hearing of the suit  herein  will rob it of its right to a fair hearing and that the  applicant  wants  the court to presume  that the defendant is  liable   without proof.

I do not agree with those submissions by counsel for the defendant.  It is the desire of this court to hear all disputes filed before it expeditiously, for that is what public policy demands.  It is expected that a party whose rights have been violated, whether fundamental or not, is the one who approaches the seat of justice first, seeking to ventilate their grievances.  Their legitimate expectation is that the doors of justice shall be open to them and their opponents and be heard fairly, justify and expeditiously.  It would be a worrying trend for the court to imagine that defendants have the propensity to delay cases simply because an expeditious hearing would prejudice them and deny them the right to a fair trial.

The right to a fair hearing is a guaranteed right under our 2010 Constitution – Article 50(1) thereof and that right cannot be limited, as espoused in Article 25 of the Constitution.

And this court is not about to limit any party’s right to a fair hearing.  If a party or parties  are confident  that their  matter  is ready for trial  or that it is  just and expedient to have their  case heard  on priority basis, they  must be  assured  and this  court assures  them  without  reservations that its doors  are  open to  administer  expeditious  justice  to them and in their circumstances without fear or favour or regard to status.  That expedition, nonetheless, must be balanced with due process of law, at whose nucleus are the rules of natural justice that no party shall be condemned unheard (right to a fair trial) which is a Constitutional imperative.

The court must also balance between the need for efficiency and expediency on the one hand and the need to accord   all parties before it, a fair hearing.  The scales of justice must balance just like a trial balance.  Both parties must be given equal share of opportunities to present their respective positions or have their fair day in court.

In this case, I note that the plaintiff has not even indicted whether she has complied with all the pre-trial requirements.  She has not sought for pre-trial directions.  The defendant has not even filed witness statements and or a list of or bundle of documents.  To  order  that this case  be heard on priority basis  in the absence  of evidence  of compliance  with pre-trial  requirements under Order  11 is  to jump the gun and cross the bridge before reaching it.  Whoever  demands  for expedition  in the disposal  of  their cases  must also ensure  that they comply or have complied  with the mandatory  procedural requirements  of the law  and go further to demand  that the adverse  party too complies.  It is only  when it is apparent  that the  adverse  party is not willing to comply or is  procrastinating  that the court will give pre-trial  directions and certify  the suit as  ready for  trial.

It is not disputed that the plaintiff sustained very serious injuries and this court empathizes with her condition.  However, due process of law is the landmark and hall mark of our legal system, requiring that the courts ensure both parties have their day in court.

In the end, I find that  the application by the plaintiff though  commendably  intended to expedite  justice, was premature as there is no compliance  with pre-trial requirements  to prompt  this court to certify  the suit herein to be heard on priority  basis.  The application is rejected on those grounds with no orders as to costs.

Dated, signed and delivered at Nairobi this 16th day of September 2015.

R.E. ABURILI

JUDGE

16/9/2015

Coram R.E. Aburili J

C.A. Adline

Mr Kulecho for plaintiff/applicant

Mr Mege for defendant/respondent

Court -Ruling read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

Mr Kulecho- We pray for a mention date for pre-trial compliance

Mr Mege- We require a second medical examination and report on the plaintiff.  We also require time to file statements.

Court-   the matter to be mentioned on 26th October 2015.  The plaintiff to be re examined by the defendant’s doctor for a second medical report.  The defendant to file and serve documents and witness statements within 30 days from to date.

R.E. ABURILI

JUDGE

16. 9.2015