[2021] KEELC 1493 (KLR)
The court held that, pursuant to Order 18 Rule 8(1) of the Civil Procedure Rules, a successor judge has the discretion to proceed with a suit from the stage at which the predecessor left it if the predecessor is prevented from concluding the trial by transfer or other cause. In this case, both parties, through their...
Source-derived case information.
- Citation
- [2021] KEELC 1493 (KLR)
- Parties
- Plaintiff: Fridah Kanja Muthaura (suing as the personal representative of the estate of Munene Mugo Ncacu, deceased); Defendant: Elias Micheni Mugo; Defendant: Bernard Muriithi Mugo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 10 of 2020
- Procedural Posture
- Land and Property Suit / Interlocutory Ruling on Continuation After Judge Transfer
- Outcome
- Consent of parties adopted as order; matter to proceed before new judge from current stage.
- Legal Topics
- Succession of Estate, Continuation of Hearing, Judge Transfer, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fridah Kanja Muthaura (suing as the personal representative of the estate of Munene Mugo Ncacu, deceased)
Plaintiff
Elias Micheni Mugo
Defendant
Bernard Muriithi Mugo
Defendant
Procedural Posture
Land and Property Suit / Interlocutory Ruling on Continuation After Judge Transfer
Legal Issues
- 1 Whether the suit should proceed before the new judge from the stage it had reached after the transfer of the previous judge.
- 2 Whether the consent of the parties to proceed is sufficient for the court to adopt and continue the hearing.
Ratio Decidendi
The court held that, pursuant to Order 18 Rule 8(1) of the Civil Procedure Rules, a successor judge has the discretion to proceed with a suit from the stage at which the predecessor left it if the predecessor is prevented from concluding the trial by transfer or other cause. In this case, both parties, through their advocates, consented to the matter proceeding before the new judge from the stage it had reached. The court found that the consent of the parties, coupled with the enabling provision of the Civil Procedure Rules, justified the adoption of the consent as an order of the court. The proceedings would be typed and supplied to the parties, and the matter would proceed for hearing...
Court Disposition
Consent of parties adopted as order; matter to proceed before new judge from current stage.
Orders
- The matter shall proceed before this court from the stage it had reached.
- The proceedings shall be typed and supplied to the parties.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 10 OF 2020
FRIDAH KANJA MUTHAURA
(SUING AS THE PERSONAL REPRESENTATIVE OF THE ESTATEOF
MUNENE MUGO NCACU (DECEASED)......................................................PLAINTIFF
VERSUS
ELIAS MICHENI MUGO.......................................................................1ST DEFENDANT
BERNARD MURIITHI MUGO.............................................................2ND DEFENDANT
RULING
1. This matter had proceeded for hearing and was part-heard by the Hon. P. M. Njoroge, J. The Plaintiff had testified and the matter was due for further hearing on 12th October, 2021. By said date, the Honourable Judge who was seized of this matter had been transferred to ELC Isiolo.
2. When this matter came up before me on 12th October, 2021, Mr Mageto Advocate for the Plaintiff and Mr Nyamu Nyaga Advocate for the Defendants agreed by consent as follows:
i) That the matter to proceed before this court from where it had reached.
ii) That the proceedings be typed and be supplied to the parties.
iii) That the matter be heard on 6/12/2021.
3. The consent was adopted as an order of the court. It should be noted that Order 18 Rule 8 (1) of the Civil Procedure Rules gives this court as the new judge discretion to decide whether or not to proceed with the suit from the stage at which my predecessor left it. The said order 18 Rule 8 (1) provides as follows:
“Where a Judge is prevented by death, transfer, or other cause from concluding the trial of a suit or the hearing of an application, his successor may deal with any evidence taken down under the foregoing rules as if such evidence had been taken down by him or under his direction under the said rules, and may proceed with the suit or application from the stage at which his predecessor left it”
4. In this instance, the trial Judge has been transferred to ELC Isiolo and is therefore prevented from concluding the trial of this suit. This court notes that the parties are in agreement that the matter may proceed before this court from the stage it had reached. Consequently, the consent of the parties is hereby adopted as an order of this court. the proceedings will be typed and the matter shall proceed for hearing on 6/12/2021 from the stage it had reached.
5. It is so ordered.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF OCTOBER, 2021 IN THE PRESENCE OF:
C/A: Ndegwa
Mageto for Plaintiff.
Nyamu Nyaga for Defendants.
C. K. YANO,
JUDGE.