[2018] KEELC 3992 (KLR)
The court exercised its discretion not to dismiss the suit despite the defendant's failure to have witnesses present, emphasizing the interest of justice and granting the defendant a final opportunity to present its defence. The court warned that failure by the defendant's witnesses to attend the next scheduled...
Source-derived case information.
- Citation
- [2018] KEELC 3992 (KLR)
- Parties
- Plaintiff: Anestly Muthoni Mukobwa (substituted for Joel Mukobwa Mwongera); Defendant: Kenya Pentecostal Holiness Church Wiru Branch through Registered Trustees
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 22 of 2017
- Procedural Posture
- Land and Property Suit / Pre Trial Directions / Adjournment Ruling
- Outcome
- Adjournment granted; suit not dismissed; final opportunity given to defendant to present defence.
- Judges
- FM Njoroge
- Legal Topics
- Adjournment of Hearing, Non Attendance of Witnesses, Judicial Discretion, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anestly Muthoni Mukobwa (substituted for Joel Mukobwa Mwongera)
Plaintiff
Kenya Pentecostal Holiness Church Wiru Branch through Registered Trustees
Defendant
Procedural Posture
Land and Property Suit / Pre Trial Directions / Adjournment Ruling
Legal Issues
- 1 Whether the suit should be dismissed due to the defendant's failure to have witnesses present for hearing.
- 2 Whether the court should grant an adjournment in the interest of justice.
Ratio Decidendi
The court exercised its discretion not to dismiss the suit despite the defendant's failure to have witnesses present, emphasizing the interest of justice and granting the defendant a final opportunity to present its defence. The court warned that failure by the defendant's witnesses to attend the next scheduled hearing would result in appropriate judicial action. The decision balanced the need for expeditious disposal of cases with the right to a fair hearing, noting the absence of any explanation from the defendant for the witnesses' non-attendance but prioritizing substantive justice over procedural default at this stage.
Court Disposition
Adjournment granted; suit not dismissed; final opportunity given to defendant to present defence.
Orders
- This suit will be heard on 5th March, 2018.
- Court will take action should the defendant’s witness fail to come to court to participate in the apposite hearing proceedings.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 22 OF 2017
FORMERLY MERU ELC CASE NO. 45 OF 2016
ANESTLY MUTHONI MUKOBWA...............SUBSTITUTED FOR
JOEL MUKOBWA MWONGERA)................................PLAINTIFF
VERSUS
KENYA PENTECOSTAL HOLINESS CHURCH WIRU BRANCH
THROUGH REGISTERED TRUSTEES.....................DEFENDANT
RULING
1. This suit had been slated for hearing on 13th February, 2018. Mr. I. C. Mugo, the plaintiff’s advocate told the court that he was ready to participate in the proceedings.
2. Miss Munga, the defendant’s advocate told the court that her witnesses were not in court. As such she was not ready to proceed with the hearing. She offered no explanation as to why her witnesses were not in court.
3. This court was inclined to dismiss this suit against the defendant in accordance with the applicable legal provisions BUT in the interest of justice I have resolved to give the defendant a last chance to prosecute its defence. It is ordered as follows:
1. This suit will be heard on 5th March, 2018.
2. Court will take action should the defendant’s witness fail to come to court to participate in the apposite hearing proceedings.
4. Costs shall be in the cause.
5. It is so ordered.
Delivered in open court at Chuka this 19th day of February, 2018 in the presence of:
CA: Ndegwa
I.C Mugo present for the plaintiff
Defendant’s advocate – absent
Gabriel Seth Keen Muriuki – pastor of the defendant
P.M. NJOROGE
JUDGE