[2022] KEELC 1882 (KLR)
The court found that the 1st Defendant was served with notice of the hearing only three days before the scheduled date, which was insufficient and did not allow adequate time to prepare or file pleadings. The Plaintiff's late service was the direct cause of the need for adjournment. It would be unfair to compel the...
Source-derived case information.
- Citation
- [2022] KEELC 1882 (KLR)
- Parties
- Plaintiff: Julius Nyagah Kithome; Defendant: Janton Investment Limited; Defendant: County Government of Tharaka Nithi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 05 of 2020
- Procedural Posture
- Land and Property Suit / Ruling on Adjournment Application
- Outcome
- Adjournment granted; costs of the day to be paid by Plaintiff to 2nd Defendant and court adjournment fees ordered.
- Legal Topics
- Adjournment of Hearing, Service of Process, Costs of Adjournment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Nyagah Kithome
Plaintiff
Janton Investment Limited
Defendant
County Government of Tharaka Nithi
Defendant
Procedural Posture
Land and Property Suit / Ruling on Adjournment Application
Legal Issues
- 1 Whether the 1st Defendant is entitled to an adjournment due to late service of process by the Plaintiff.
- 2 Whether the Plaintiff should bear the costs of the adjournment occasioned by late service.
Ratio Decidendi
The court found that the 1st Defendant was served with notice of the hearing only three days before the scheduled date, which was insufficient and did not allow adequate time to prepare or file pleadings. The Plaintiff's late service was the direct cause of the need for adjournment. It would be unfair to compel the 1st Defendant to proceed under such circumstances. The court exercised its discretion to grant the adjournment, but ordered that the Plaintiff pay the costs of the day to the 2nd Defendant and court adjournment fees, as the Plaintiff's conduct occasioned the delay. The 1st Defendant was directed to file and serve their documents within 15 days, and the matter was fixed for...
Court Disposition
Adjournment granted; costs of the day to be paid by Plaintiff to 2nd Defendant and court adjournment fees ordered.
Orders
- Plaintiff to pay today's costs to the 2nd Defendant and court adjournment fees.
- 1st Defendant to file and serve their documents within 15 days of the ruling date.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 05 OF 2020
JULIUS NYAGAH KITHOME ..................................................................PLAINTIFF
VERSUS
JANTON INVESTMENT LIMITED................................................1ST DEFENDANT
COUNTY GOVERNMENT OF THARAKA NITHI ......................2ND DEFENDANT
RULING
1. Whereas this matter is for hearing, the court has been asked for an adjournment by Ms. Wahome, learned counsel for the 1st Defendant. I have listened and considered to all the arguments for and against the application. The main reason given for the application is that the 1st Defendant was only served by advertisement in the newspaper on 29th January, 2022 and counsel filed notice of appointment today. The question of whether or not to grant an adjournment is at the sole discretion of the court, of course taking into account the reasons for adjournment. In this case, it is not disputed that the service on the 1st Defendant was very short. Indeed the 1st Defendant is yet to file their pleadings. All that they have done is to file a notice of appointment of advocate which, as earlier stated, was only filed this morning. It would be quite unfair to compel counsel for the 1st Defendant to proceed when it is clear that the 1st Defendant was served by the Plaintiff late. No doubt the notice given was insufficient as the service was effected on Saturday 29th January, 2022, while the hearing of the matter is on 1st February, 2022.
2. The court has also noted that the Plaintiff had been granted the last adjournment in the matter on 17th January, 2022. Since it is clear that today’s adjournment has been occasioned by the Plaintiff who effected service upon the 1st Defendant quite late, I direct that the Plaintiff will pay today’s costs to the 2nd Defendant as well as Court Adjournment Fees. The 1st Defendant is directed to file and serve their documents within 15 days of today. The matter is fixed for hearing on 23rd February, 2022.
3. Orders accordingly.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 1ST DAY FEBRUARY, 2022 IN THE PRESENCE OF:
C/A: MARTHA
MUCHIRI H/B FOR MRS. OTIENO FOR PLAINTIFF
SALUNY FOR 2ND DEFENDANT
MS. WAHOME H/B FOR MBIYU KAMAU FOR 1ST DEFENDANT
C. K. YANO,
JUDGE.