[1998] KECA 206 (KLR)
The Court of Appeal held that the trial judge acted judicially and reasonably in dismissing the plaintiffs' case after their counsel failed to call any evidence, despite being present and having been granted an adjournment. The judge had no alternative but to enter judgment for the respondents, as the plaintiffs...
Source-derived case information.
- Citation
- [1998] KECA 206 (KLR)
- Parties
- Appellant: Julius Nyumu; Appellant: Mwangi Kinuthia; Appellant: Elijah Ngugi Kimwaki; Appellant: Mwangi Muchuri; Respondent: Githunguri Constituency Ranching Co. Ltd; Respondent: Rebecca Waringa Njoroge; Respondent: Waira Kamau; Respondent: Peter Kamunge; Respondent: Wanjiru Matheri; Respondent: Lucia Wambui Kariuki; Respondent: Josephine Wanjeri Muthama; Respondent: Ikaba Mukundi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 5 of 1998
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- appeal dismissed with costs
- Legal Topics
- Dismissal for Non Prosecution, Adjournment of Hearing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Nyumu
Appellant
Mwangi Kinuthia
Appellant
Elijah Ngugi Kimwaki
Appellant
Mwangi Muchuri
Appellant
Githunguri Constituency Ranching Co. Ltd
Respondent
Rebecca Waringa Njoroge
Respondent
Waira Kamau
Respondent
Peter Kamunge
Respondent
Wanjiru Matheri
Respondent
Lucia Wambui Kariuki
Respondent
Josephine Wanjeri Muthama
Respondent
Ikaba Mukundi
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial judge erred in dismissing the plaintiffs' case when no evidence was led by the plaintiffs' counsel.
- 2 Whether the judge exercised his discretion judicially and reasonably in entering judgment for the respondents.
Ratio Decidendi
The Court of Appeal held that the trial judge acted judicially and reasonably in dismissing the plaintiffs' case after their counsel failed to call any evidence, despite being present and having been granted an adjournment. The judge had no alternative but to enter judgment for the respondents, as the plaintiffs failed to discharge their burden of proof. The appellate court found no error in principle or procedure and concluded that there was no merit in the appeal. Accordingly, the appeal was dismissed with costs to the respondents.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORA: KWACH, TUNOI & LAKHA, J.J.A. )
CIVIL APPEAL NO. 5 OF 1998
BETWEEN
JULIUS NYUMU…………………………………………….1ST APPELLANT
MWANGI KINUTHIA……………………………………….2ND APPELLANT
ELIJAH NGUGI KIMWAKI………………………………….3RD APPELLANT
MWANGI MUCHURI …………………………………………4TH APPELLANT
AND
GITHUNGUURI CONSTITUENCY RANCHING CO. LTD …1ST RESPONDENT
REBECCAWARINGA NJOROGE……………......………...2ND RESONDENT
WAIRA KAMAU …………………………..………………3RD RESPONDENT
PETER KAMUNGE…………………………..……………..4TH RESPONDENT
WANJIRU MATHERI ………………………..…………….5TH RESPONDENT
LUCIA WAMBUI KARIUKI………………….…………….6TH RESPONDENT
JOSEPHINE WANJERI MUTHAMA………………...…….7TH RESPONDENT
IKABA MUKUNDI…………………………………………8TH RESPONDENT
(Appeal from the judgment and decree of the high court of Kenya at Nairobi (Hon. Mr. Justice Kuloba) dated 31st July,
In
H.C.C.C. NO. 2573 OF 1998)
JUDGEMENT OF THE COURT
This is an appeal from the judgment of the superior court (kuloba, j) given on the 31st July 1996 dismissing the plaintiffs’ case. The case was fixed, by consent; on the 7th may 1996 for hearing on 31st July 1996 but Mr. Nduati, then for the plaintiffs, was ready and although he had his witness, he did not call him to give evidence. The learned judge in the interest of justice adjourned to 12. 00 p.m., 3 hours later. Yet Mr. Nduati led no evidence for the plaintiffs. In our judgment, there was no other course for the learned judge to take. The learned judge acted judicially and reasonably and did not err in principal or otherwise in entering judgment as he did. We heard nothing in support of the appeal to disturb and the learned judge’s judgment. There was no merit in this appeal and it is dismissed with costs.
Dated and delivered at Nairobi this 22nd day of July 1998
R.O.KWACH
JUDGE OF APPEAL
P.K.TUNOI
JUDGE OF APPEAL
A.A. LAKHA
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR