[2024] KEELC 5016 (KLR)
The court, exercising its discretion under Section 3A of the Civil Procedure Act, found that although the 2nd defendant has previously sought adjournments on health grounds, he has consistently attended court in person. On this occasion, his absence was explained by illness affecting both himself and his daughter....
Source-derived case information.
- Citation
- [2024] KEELC 5016 (KLR)
- Parties
- Plaintiff: Herbert J. Ashiruma t/a Ashiruma & Co. Advocates; Defendant: National Social Security Fund Board of Trustees; Defendant: John M. Mburu; Defendant: Wilfreda Mwambao; Defendant: N.W Realite Ltd; Defendant: Peter Sergon; Defendant: Nahashon Kuria; Defendant: Cyrus Nyela
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1211 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Adjournment Application
- Outcome
- Adjournment granted; hearing rescheduled to a final date.
- Judges
- JA Mogeni
- Legal Topics
- Adjournment of Hearing, Judicial Discretion, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Herbert J. Ashiruma t/a Ashiruma & Co. Advocates
Plaintiff
National Social Security Fund Board of Trustees
Defendant
John M. Mburu
Defendant
Wilfreda Mwambao
Defendant
N.W Realite Ltd
Defendant
Peter Sergon
Defendant
Nahashon Kuria
Defendant
Cyrus Nyela
Defendant
Procedural Posture
Environment and Land Case / Ruling on Adjournment Application
Legal Issues
- 1 Whether the court should grant an adjournment due to the 2nd defendant's illness and absence.
- 2 Whether repeated requests for adjournment constitute abuse of court process.
- 3 How the court should balance the need for justice with timely disposal of cases.
Ratio Decidendi
The court, exercising its discretion under Section 3A of the Civil Procedure Act, found that although the 2nd defendant has previously sought adjournments on health grounds, he has consistently attended court in person. On this occasion, his absence was explained by illness affecting both himself and his daughter. The court considered this a sufficient reason to grant the adjournment, but emphasized that the matter has been pending since 2013 and that delays must be curtailed. The court therefore rescheduled the hearing to a final date, warning that failure to attend will result in the case being closed and only a judgment date being set thereafter.
Court Disposition
Adjournment granted; hearing rescheduled to a final date.
Orders
- Hearing rescheduled to 13/11/2024 as the final hearing date.
- Any party who fails to attend on that date will have the case closed and only a judgment date will be set.
Full Case Text
Judgment text and source record
30 paragraphs
Herbert J. Ashiruma t/a Ashiruma & Co. Advocates v National Social Security Fund Board of Trustees & 6 others (Environment & Land Case 1211 of 2013) [2024] KEELC 5016 (KLR) (1 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5016 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 1211 of 2013
JA Mogeni, J
July 1, 2024
Between
Herbert J. Ashiruma t/a Ashiruma & Co. Advocates
Plaintiff
and
National Social Security Fund Board of Trustees
1st Defendant
John M. Mburu
2nd Defendant
Wilfreda Mwambao
3rd Defendant
N.W Realite Ltd
4th Defendant
Peter Sergon
5th Defendant
Nahashon Kuria
6th Defendant
Cyrus Nyela
7th Defendant
Ruling
1. The 2nd defendant has made an application for adjournment the reason being that he is feeling unwell and his daughter is also unwell. The application is opposed by the counsel for the Plaintiff who has alleged that Mr. Mburu always comes to court even whilst unwell to seek an adjournment himself. The court is sympathetic to Mr. Mburu and indeed notes that on occasions when he has sought an adjournment on grounds of illness he has attended court himself. On this one occasion he is absent from court. In the circumstances the court is obliged to accommodate him since the court has seen his effort in the past. Section 3A of the Civil Procedure Act has bestowed upon this court wide discretion in ensuring that justice is dispensed effectively, efficiently and in a timely manner. I do note that this is a 2013 matter and that the defence case has dragged on for long.
2. Mr. Itemere on his part seems to indicate that his witness is running late and will only be able to attend court at 1. 30p.m which is one and a half hours since the time that was allocated for hearing. This is to say the least absurd and ridiculous. Taking the Honourable court for granted. The court frowns upon this despicable show of lack of respect for court processes.
3. Anyway on the account of Mr. Mburu I will reschedule this hearing to 13/11/2024. I would like the parties to note that this is the FINAL hearing date which will mean the case will close on that date. Any party who will not attend court should note that the case will close and no further action shall be taken except issuance of a judgement date shall be made as the closing statement on 13/11/2024. The defendant to serve the date upon Mr. John Mburu.
HON MOGENI J.JUDGE01/07/2024