[2023] KEELC 18132 (KLR)
The court found that the plaintiff had repeatedly failed to comply with pretrial directions and had engaged in conduct that delayed the prosecution of the main suit, including filing multiple applications and failing to prepare for hearing despite ample notice. The purported application to cease acting was filed...
Source-derived case information.
- Citation
- [2023] KEELC 18132 (KLR)
- Parties
- Plaintiff: Sammy Ndegwa Murithi; Defendant: Richard Thairu Gachagua; Defendant: County Government of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 303 of 2017
- Procedural Posture
- Civil Suit / Pre Trial Directions; Ruling on Adjournment and Case Management
- Outcome
- Hearing to proceed as scheduled; no adjournment granted.
- Judges
- LN Mbugua
- Legal Topics
- Case Dismissal for Non Attendance, Reinstatement of Suit, Pretrial Directions, Adjournment of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Ndegwa Murithi
Plaintiff
Richard Thairu Gachagua
Defendant
County Government of Nairobi
Defendant
Procedural Posture
Civil Suit / Pre Trial Directions; Ruling on Adjournment and Case Management
Legal Issues
- 1 Whether the plaintiff's application to cease acting justified adjournment of the hearing scheduled for June 20, 2023.
- 2 Whether the plaintiff complied with previous court directions regarding pretrial procedures and hearing timelines.
- 3 Whether the suit should proceed to hearing in light of the plaintiff's conduct and litigation history.
Ratio Decidendi
The court found that the plaintiff had repeatedly failed to comply with pretrial directions and had engaged in conduct that delayed the prosecution of the main suit, including filing multiple applications and failing to prepare for hearing despite ample notice. The purported application to cease acting was filed only a day before the scheduled hearing, with no adequate explanation, and was not reflected in the court's digital records. The court determined that there was no valid basis to adjourn the hearing or further delay the proceedings. In the exercise of its case management powers and to prevent abuse of process, the court directed that the matter proceed to hearing as scheduled.
Court Disposition
Hearing to proceed as scheduled; no adjournment granted.
Orders
- The matter shall proceed to hearing in open court at 10:00 am on June 20, 2023.
- No directions are given regarding any pending application as none is properly before the court.
Full Case Text
Judgment text and source record
30 paragraphs
Murithi v Gachagua & another (Environment and Land Case Civil Suit 303 of 2017) [2023] KEELC 18132 (KLR) (20 June 2023) (Ruling)
Neutral citation: [2023] KEELC 18132 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit 303 of 2017
LN Mbugua, J
June 20, 2023
Between
Sammy Ndegwa Murithi
Plaintiff
and
Richard Thairu Gachagua
1st Defendant
County Government of Nairobi
2nd Defendant
Ruling
1. This matter was scheduled for hearing today. Counsel for the plaintiff has informed the court that they cannot be able to proceed with the hearing because they filed an application on June 19, 2013 to cease acting and that they served the same.
2. In response, counsel for the 1st defendant averred that the case is over 6 years old and it has dragged in court due to the many applications made by the plaintiff. He contended that he is ready for the trial with witnesses.
3. I have perused the record and I find that this suit had been dismissed way back on January 28, 2019 for non-attendance.
4. In a Ruling delivered on November 3, 2021, this court gave directions for the suit to be reinstated on condition that the same was set down for hearing within the next 6 months. By then the court noted that, there were about 7 pending applications which the court dealt with suo moto while stating that parties should focus on the prosecution of the main suit'; and the court discouraged the filing of various applications.
5. In yet another Ruling delivered on December 8, 2021 in respect of plaintiffs application dated September 1, 2021, where plaintiff was seeking summary judgment, I again reminded the parties to focus on the hearing of the main suit.
6. The suit was then scheduled for pretrial directions on February 28, 2022 when M Munguti advocate holding brief for Mr Kokul for the plaintiff told the court that 'we have not complied'. Mr Kimathi for 1st defendant had however complied with pretrial directions.
7. The court proceeded to give directions that further final pretrial directions were to be given on July 20, 2022 and hence the hearing date scheduled for April 26, 2022 was vacated. The plaintiff was directed to file and serve their Trial Bundle by April 22, 2022 of which none compliance on the part of the plaintiff was to attract dismissal for the suit.
8. Come the date of July 20, 2022 and the plaintiffs counsel instead of addressing the court on the issue of preparation for the trial proceeded to inform the court that they had two pending applications!
9. The court proceeded to give directions on both the prosecution of the pending applications as well as the pre-trial directions; such that on November 2, 2022, the court proceeded to set down the matter for hearing of the main suit on June 20, 2023 (today) in the presence of counsel for plaintiff and 1st defendant.
10. The foregoing litigation history paints a grim picture on the part of the plaintiff.
11. Further no explanation has been advanced as to why the purported application was filed just a day before the hearing day, yet the plaintiffs counsel had been aware of the said date for a period of more than half a year (since November 2, 2022).
12. What more, this court had gone through the court’s digital platform (CTS) and dealt with all the applications filed there in by noon of June 19, 2023. The alleged application was not in that list.
13. It follows that no directions have been given relating to any pending application. In the circumstances, and noting that today, the matter is coming up for the hearing of the suit, I give directions that case proceeds in open court at 10. 00 am.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20THDAY OF JUNE, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/s Fosal holding brief for Kokul for PlaintiffKimathi for 1st Defendant1st DefendantKajuju: Court assistantELC SUIT NO. 303 OF 2017 (Ruling) Page 2 of 2