[2018] KEELC 3543 (KLR)
The court found that the plaintiff and his advocate failed to attend court on the scheduled hearing date without providing sufficient cause. The advocate holding brief did not offer a substantive explanation for the absence. The defendants and their advocate were present and ready to proceed. In accordance with...
Source-derived case information.
- Citation
- [2018] KEELC 3543 (KLR)
- Parties
- Plaintiff: Luke Kithure Mutiga; Defendant: Jonathan Kithaka Iguna & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Adjournment and Dismissal
- Outcome
- Suit dismissed for non-attendance by plaintiff; defendants to prove counterclaim on scheduled date; costs awarded to defendants.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Non Attendance, Counterclaim Procedure, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luke Kithure Mutiga
Plaintiff
Jonathan Kithaka Iguna & Another
Defendant
Procedural Posture
Land and Property Suit / Ruling on Adjournment and Dismissal
Legal Issues
- 1 Whether the suit should be dismissed due to the plaintiff's absence at the hearing.
- 2 Whether the defendants should be allowed to proceed with their counterclaim.
- 3 Who should bear the costs of the dismissed suit.
Ratio Decidendi
The court found that the plaintiff and his advocate failed to attend court on the scheduled hearing date without providing sufficient cause. The advocate holding brief did not offer a substantive explanation for the absence. The defendants and their advocate were present and ready to proceed. In accordance with Order 12 Rule 3 of the Civil Procedure Rules, the court exercised its discretion to dismiss the suit for non-attendance. The court further directed that the defendants, having filed a counterclaim, should be allowed to prove it on a later date. Costs of the dismissed suit were awarded to the defendants, following the general principle that costs follow the event.
Court Disposition
Suit dismissed for non-attendance by plaintiff; defendants to prove counterclaim on scheduled date; costs awarded to defendants.
Orders
- The plaintiff's suit is dismissed for non-attendance.
- The defendants are directed to prove their counterclaim on 8th May, 2018.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 143 OF 2017
FORMERLY MERU ELC CASE NO. 155 OF 2011 (OS)
LUKE KITHURE MUTIGA....................................................PLAINTIFF
VERSUS
JONATHAN KITHAKA IGUNA & ANOTHER............DEFENDANTS
RULING
1. When this suit was given a hearing date on 14th February, 2018, the advocates representing the parties were present. The hearing date given by the court was the 3rd of May, 2018.
2. On 3rd May, 2018, Miss Muriuki holding brief for Mr. Murango, the plaintiff’s advocate, told the court that he sought an adjournment as the plaintiff was unavailable. It is my view that since Mr. Murango had dedicated the 3rd of May, 2018 to the hearing of the suit, he himself should have come to court to explain why the hearing should not proceed. Mr. Rimita, the defendants’ advocate was present in court and told the court that he was ready to proceed with the hearing. He also told the court that the defendants were in court.
3. As only the defendants were in court, this suit is dismissed.
4. As the defendants have a counter-claim, they are directed to prove their counterclaim on 8th May, 2018.
5. Costs concerning the dismissed suit will follow the event and are awarded to the defendants.
6. It is so ordered.
Delivered in open Court at Chuka this 3rd day of May, 2018 in the presence of:
CA: Ndegwa
Mrs Muriuki h/b Murango for the Plaintiff
Rimita for the defendants
P.M. NJOROGE
JUDGE