[2018] KEHC 3249 (KLR)
The court exercised its discretion to grant a final adjournment to the defendant, recognizing the need to allow the defendant a fair opportunity to respond to the application. However, the court imposed strict timelines for filing the replying affidavit and a further affidavit by the plaintiff, and made it clear...
Source-derived case information.
- Citation
- [2018] KEHC 3249 (KLR)
- Parties
- Plaintiff: Kaydee Quarry Limited; Defendant: Baileys Rocktech Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 105 of 2013
- Procedural Posture
- Civil Suit / Interlocutory Application for Adjournment of Hearing of Notice of Motion
- Outcome
- Application for adjournment allowed on strict terms.
- Legal Topics
- Adjournment of Hearing, Replying Affidavit Timelines, Costs Award, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaydee Quarry Limited
Plaintiff
Baileys Rocktech Limited
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Adjournment of Hearing of Notice of Motion
Legal Issues
- 1 Whether the defendant should be granted an adjournment to file a reply to the application dated 3.11.2016.
- 2 Whether the adjournment should be granted on terms, including costs and timelines for filing affidavits.
- 3 Whether the attendance of the 2nd defendant should be dispensed with due to difficulties in service.
Ratio Decidendi
The court exercised its discretion to grant a final adjournment to the defendant, recognizing the need to allow the defendant a fair opportunity to respond to the application. However, the court imposed strict timelines for filing the replying affidavit and a further affidavit by the plaintiff, and made it clear that the hearing would proceed on the scheduled date regardless of the attendance of either party. The court also awarded costs of the adjournment to the plaintiff/applicant, reflecting the inconvenience caused by the delay and the age of the matter. The court's decision was guided by the principles of fairness, expeditious disposal of cases, and the need to avoid unnecessary...
Court Disposition
Application for adjournment allowed on strict terms.
Orders
- This is the last adjournment for the defendant.
- The counsel for the 1st defendant is granted 20 days to file and serve a replying affidavit to the application dated 3.11.2016.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO 105 OF 2013
KAYDEE QUARRY LIMITED.......................PLAINITFF/APPLICANT
VERSUS
BAILEYS ROCKTECH LIMITED........DEFENDANT/RESPONDENT
RULING
1. The matter was coming up for hearing of the Notice of Motion dated 3. 11. 2016.
The applicants/Plaintiff’s counsel M/s Adagi indicated that she was ready to proceed.
2. Mr. Kiarie, counsel for the Director of 1st Defendant stated that he was not ready to proceed because he had not been able to get instructions from his client, the 1st defendant and gave a number of reasons for this. He then pleaded for one more chance to enable him seek instructions and file a reply to the application so that the matter could proceed. He offered to pay costs to the applicant.
3. M/s Adagi opposed this application on the ground that the matter being a 2013, was old, the application which was dated 3. 11. 2016 having been served upon the defendants on 10. 11. 2010. This had been conceded to by the counsel for the Director of the 1st defendant. She however, urged the court to dispense with the attendance of the 2nd defendant if it was inclined to grant the 1st defendant’s counsel the adjournment sought since they were facing a predicament in serving the 2nd Director for the Defendant who is out of country.
4. I have considered the submissions by both counsel and allow the application for an adjournment by the counsel for the 1st defendant’s Director on the following terms:
1. That the same is a last adjournment for the defendant.
2. The counsel for 1st Director of Defendant is granted 2o days leave to file and serve a replying affidavit to the application dated 3. 11. 2016.
3. The plaintiff/Applicant to file a further affidavit within 7 days of being served, if need be.
4. The matter to proceed for hearing on the date scheduled notwithstanding the attendance of either party.
5. Hearing of the application dated 3. 1.2010 on 23. 10. 2018.
6. Costs to the plaintiff/applicant by the defendant.
Ruling read, signed and dated this 18th day of September, 2018.
LADY JUSTICE
D. O. CHEPKWONY