[2018] KEHC 1467 (KLR)
The court found that the defendant had not provided satisfactory reasons for a further adjournment, noting that the case had already been pending for over 12 years and that the defendant had previously been accommodated with adjournments. The court determined that the absence of the witness was not sufficiently...
Source-derived case information.
- Citation
- [2018] KEHC 1467 (KLR)
- Parties
- Plaintiff: Hon. Dr. Christopher Murungaru; Defendant: John Githongo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 446 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Adjournment
- Outcome
- application for adjournment dismissed
- Legal Topics
- Adjournment of Hearing, Delay of Proceedings, Case Management
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Dr. Christopher Murungaru
Plaintiff
John Githongo
Defendant
Procedural Posture
Civil Case / Ruling on Application for Adjournment
Legal Issues
- 1 Whether the defendant has provided sufficient grounds for adjournment of the hearing.
- 2 Whether further adjournment would prejudice the plaintiff's right to a speedy trial.
- 3 Whether previous indulgence for adjournment has been abused by the defendant.
Ratio Decidendi
The court found that the defendant had not provided satisfactory reasons for a further adjournment, noting that the case had already been pending for over 12 years and that the defendant had previously been accommodated with adjournments. The court determined that the absence of the witness was not sufficiently justified, especially as the witness had been in the country but had not prioritized attendance. The court concluded that any further delay would unduly prejudice the plaintiff's right to a timely resolution and that costs would not adequately compensate for such prejudice. Accordingly, the application for adjournment was rejected, and the matter was ordered to proceed as scheduled.
Court Disposition
application for adjournment dismissed
Orders
- The application for adjournment is rejected.
- The suit shall proceed for hearing as scheduled.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASENO. 446OF 2006
HON. DR. CHRISTOPHER MURUNGARU.......................PLAINTIFF
-V E R S U S –
JOHN GITHONGO..............................................................DEFENDANT
RULING
1) The defendant took out the motion dated 14. 12. 2018 in which he principally sought for the adjournment of the hearing of this suit from17. 12. 2018 to the month of January 2019. The defendant swore an affidavit in support of the motion.The motion was served upon the plaintiff’s advocate in court.This court however permitted the plaintiff’s advocate to orally respond to the motion.
2) It is the submission of Miss Kamau, learned advocate holding brief for Mr. Wandabwa for the defendant, that the defendant’s last witness, Hon. Raila Odinga is not in a position to attend court to testify on 17. 12. 2018 because he will be out of the country.She proposed for the hearing of the case to be adjourned to 14. 1.2019. The learned advocate referred to the letter from the witness’s secretariat dated 12. 11. 2018 which letter was also presented to this court on 13. 11. 2018 to persuade this court to have the hearing ofthis case adjourned.
3) Mr. Kilukumi, learned advocate for the plaintiff strenuously opposed the application for adjournment arguing that the same had previously been sought and this court declined to accede.The learned advocate argued that the defendant was hell bent to have the hearing of this suit put off to the year 2019 to the utter detriment of the plaintiff.It was pointed out that this is a case which has been pending in the corridors of justice for the last 12 years.Miss Kamau is of the submission that the plaintiff can be compensated by costs hence he will not be prejudiced.
4) Having considered the material placed before this court and having considered the rival oral submissions, it is not in dispute that this suit has been pending in this court for more than 12 years.
5) This is the second time the defendant is seeking to have the hearing of the defence case adjourned on the basis that his last witness is unavailable to attend court.This court considered a similar application on 6/11/2018 and decided to have the matter adjourned to 13. 11. 2018 for mention to enable the defendant consult his witness and have convenient hearing dates fixed within this year.
6) On 13. 11. 2018, the defendant’s advocate informed thiscourt that Hon. Odinga would not be available till 14. 1.2019. This court took into account the defendant’s request but declined to accede to the request but instead gave him latitude by adjourning the hearing of the matter to 17. 12. 2018. This court indicated in its brief ruling that it was reluctant to have the hearing of the case spill over to the year 2019.
7) The defendant has today made a similar request on the basis of the same grounds.This court is not convinced that the hearing of this case should be adjourned.It is common knowledge that defendant’s witness has been within the country but has been reluctant to attend court to testify.
8) I think the witness has not given priority or preference to this case.I reject the application for adjournment for the followingreasons:
i. That this is a very old case and any further delay will adversely affect the plaintiff’s rights to a speedy conclusion of thematter and no amount of costs can compensate the plaintiff.
ii. That the reason advanced by the defendant in support of the application for adjournment is not satisfactory.
iii. That the defendant has previously been accommodated with adjournments but he appears to have taken for granted such indulgence.
9) Consequently, I direct that this suit proceeds for hearing as scheduled.
Dated, Signed and Delivered in open court this 17thday of December, 2018.
J. K. SERGON
JUDGE
In the presence of:
....................................................for the Plaintiff
..................................................... for the Defendants