[2018] KEELC 1917 (KLR)
The court found that the 2nd plaintiff, Abdul Rashid Mbae Magambo, failed to attend court as required under Order 12, Rule 1 of the Civil Procedure Rules. No explanation for his absence was provided by his advocate. Given the long pendency of the suit and the absence of a counterclaim by the defendant, the court...
Source-derived case information.
- Citation
- [2018] KEELC 1917 (KLR)
- Parties
- Plaintiff: Johnson Nkonge O. M’Rucha; Defendant: John Phares Njeru M’Ithaara; Applicant: Abdul Rashid Mbae Magambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case108 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Non Attendance and Dismissal of Suit
- Outcome
- 2nd plaintiff's case dismissed for non-attendance; costs awarded to defendant.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Non Attendance, Civil Procedure Rules, Costs Award, Counterclaim Absence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Nkonge O. M’Rucha
Plaintiff
John Phares Njeru M’Ithaara
Defendant
Abdul Rashid Mbae Magambo
Applicant
Procedural Posture
Land and Property Suit / Ruling on Non Attendance and Dismissal of Suit
Legal Issues
- 1 Whether the suit by the 2nd plaintiff should be dismissed for non-attendance as per Order 12, Rule 1 of the Civil Procedure Rules.
- 2 Whether costs should be awarded to the defendant upon dismissal of the 2nd plaintiff's case.
Ratio Decidendi
The court found that the 2nd plaintiff, Abdul Rashid Mbae Magambo, failed to attend court as required under Order 12, Rule 1 of the Civil Procedure Rules. No explanation for his absence was provided by his advocate. Given the long pendency of the suit and the absence of a counterclaim by the defendant, the court exercised its discretion to dismiss the 2nd plaintiff's case for non-attendance. The court further ordered that costs be awarded to the defendant, as the successful party, in line with the general rule that costs follow the event.
Court Disposition
2nd plaintiff's case dismissed for non-attendance; costs awarded to defendant.
Orders
- The 2nd plaintiff’s case (Abdul Rashid Mbae Magambo) is dismissed for non-attendance.
- Costs are awarded to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 108 OF 2017
FORMRLY MERU ELC CASE NO. 12 OF 2009
JOHNSON NKONGE O. M’RUCHA......................................................PLAINTIFF
VERSUS
JOHN PHARES NJERU M’ITHAARA..................DEFENDANT/RESPONDENT
ABDUL RASHID MBAE MAGAMBO.......INTERESTED PARTY/APPLICANT
RULING
1. By consent, the parties in this suit had agreed that it be heard on 24th September, 2018.
2. At 9. 03 am Miss Munga, the plaintiffs’ advocate, and the defendant’s advocate, Mr. K’Opere informed the court that they were ready to proceed with the hearing. The court directed that the hearing commences at 9. 30 am. Because the 4 applications in the Cause List were not completed as earlier scheduled, hearing commenced at 11. 30am. Mr. K’Opere gave an opening address which the court recorded.
3. Miss Munga told the court that the 2nd plaintiff who also styles himself as an interested party was not present. She did not explain why he was not in court. Nevertheless, she intimated that she was ready to proceed with the hearing of the suit with the presence of the 1st plaintiff only.
4. After the 2nd plaintiff’s name was called on outside the court as per the requirement of order 12, rule 1, of the Civil Procedure Rules, it was established that he had not attended court. The court laments this situation especially in view of the fact that this suit was filed in years 2009 and 2010.
5. The court established that the defendant had not filed a counterclaim against the plaintiffs.
6. In the circumstances, the 2nd plaintiff’s case, to wit Abdul Rashid Mbae Magambo’s case, is dismissed and costs are awarded to the defendant.
7. It is so ordered.
Delivered in open Court at Chuka this 24th day of September, 2018 in the presence of:
CA: Ndegwa
Miss Munga for the plaintiffs
Mr. K’Opere for the defendant
P.M. NJOROGE
JUDGE