[2018] KEELC 2507 (KLR)
The court found that the 6th and 7th plaintiffs, despite being aware of the hearing date, failed to attend court, justifying dismissal of their claims under Order 12 Rule 4 of the Civil Procedure Rules. The 3rd plaintiff's claim was found to have abated by operation of law, as agreed by both parties' advocates. The...
Source-derived case information.
- Citation
- [2018] KEELC 2507 (KLR)
- Parties
- Plaintiff: Cecilio Murango Mwenda; Plaintiff: Stephen Mugao Mathenge; Plaintiff: Bernard Njeru; Plaintiff: Agnes Mukoiti Muthambi; Plaintiff: David Mwangangi Gaichu; Plaintiff: Joshua Mwiranga Njagi; Plaintiff: Njeru Patrick Nyaga; Defendant: Isaac Kimathi Ikunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case18 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Attendance and Abatement
- Outcome
- Partial dismissal and abatement of claims; costs awarded as specified.
- Judges
- FM Njoroge
- Legal Topics
- Abatement of Suit, Dismissal for Nonattendance, Costs Award, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilio Murango Mwenda
Plaintiff
Stephen Mugao Mathenge
Plaintiff
Bernard Njeru
Plaintiff
Agnes Mukoiti Muthambi
Plaintiff
David Mwangangi Gaichu
Plaintiff
Joshua Mwiranga Njagi
Plaintiff
Njeru Patrick Nyaga
Plaintiff
Isaac Kimathi Ikunga
Defendant
Procedural Posture
Land and Property Suit / Ruling on Attendance and Abatement
Legal Issues
- 1 Whether the claims of the 6th and 7th plaintiffs should be dismissed for non-attendance at the hearing.
- 2 Whether the claim of the 3rd plaintiff has abated by operation of law.
- 3 Who should bear the costs of the suit in relation to the dismissed and abated claims.
Ratio Decidendi
The court found that the 6th and 7th plaintiffs, despite being aware of the hearing date, failed to attend court, justifying dismissal of their claims under Order 12 Rule 4 of the Civil Procedure Rules. The 3rd plaintiff's claim was found to have abated by operation of law, as agreed by both parties' advocates. The court exercised its discretion to award costs to the defendant against the 6th and 7th plaintiffs, as their absence necessitated dismissal, but declined to award costs against the 3rd plaintiff due to the abatement being by operation of law and not due to any fault. The suit proceeds only as regards the remaining plaintiffs.
Court Disposition
Partial dismissal and abatement of claims; costs awarded as specified.
Orders
- The claims by Joshua Mwiranga Njagi (6th plaintiff) and Njeru Patrick Nyaga (7th plaintiff) against the defendant are dismissed.
- The claim by Bernard Njeru (3rd plaintiff) has abated and is no longer extant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 18 OF 2017
FORMERLY MERU ELC 66 OF 2016
CECILIO MURANGO MWENDA ...........1ST PLAINTIFF
STEPHEN MUGAO MATHENGE...........2ND PLAINTIFF
BERNARD NJERU.....................................3RD PLAINTIFF
AGNES MUKOITI MUTHAMBI..............4TH PLAINTIFF
DAVID MWANGANGI GAICHU..............5TH PLAINTIFF
JOSHUA MWIRANGA NJAGI..................6TH PLAINTIFF
NJERU PATRICK NYAGA.........................7TH PLAINTIFF
VERSUS
ISAAC KIMATHI IKUNGA..........................DEFENDANT
RULING
1. This ruling concerns absence of the 6th plaintiff, Joshua Mwiranga Njagi and of the 7th plaintiff, Njeru Patrick Nyagah on 16th July, 2017 when this suit was slated for hearing. It also concerns the abatement of this suit as concerns Bernard Njeru, the 3rd plaintiff.
2. The names of the 6th and 7th plaintiffs were called on outside court but they were not in attendance. Their advocate, Miss Wanjohi, confirmed that they were aware of the hearing date. In terms of the provisions of Order 12 Rule 4 of the Civil Procedure Rules, I deemed it necessary for the suit to proceed with the participation of the 2nd, 4th and 5th plaintiffs.
3. Regarding the 3rd plaintiff, Miss Wanjohi, the plaintiffs’ advocate and Mr. Manasses Kariuki, the defendant’s advocate, were in agreement that the 3rd plaintiff’s claim against the defendant had abated.
4. In the circumstances, it is ordered as follows:
a. The claims by Joshua Mwiranga Njagi, the 6th plaintiff, and by Njeru Patrick Nyaga, the 7th plaintiff, against the plaintiff are dismissed.
b. The claim by the 3rd plaintiff, Bernard Njeru, has abated by operation of the law and is, therefore, no longer extant.
5. Costs shall follow the event and are awarded to the defendant as against the 6th and the 7th plaintiffs.
6. No costs are awarded against the 3rd plaintiff.
7. It is so ordered.
Delivered in open court at Chuka this 16th day of July, 2018 in the presence of:
CA: Ndegwa
Miss Wanjohi for the Plaintiffs
Manasses Kariuki for the Defendants
P.M. NJOROGE
JUDGE