[2022] KEELC 15125 (KLR)
The court found that while it has discretion in managing its proceedings, the Civil Procedure Rules provide a clear framework for the order of hearing, with the plaintiff's case to be heard first. The court noted that Order 17, Rule 4 allows it to proceed to determine the suit if a party fails to take necessary...
Source-derived case information.
- Citation
- [2022] KEELC 15125 (KLR)
- Parties
- Applicant: Zephaniah Gichure Ndungu; Respondent: Rwaikamba Rwathia Trading Co. Limited; Respondent: City Council 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 78 of 2009
- Procedural Posture
- Civil Suit / Ruling on Oral Application for Adjournment
- Outcome
- Application for adjournment declined; case to proceed.
- Judges
- JA Mogeni
- Legal Topics
- Adjournment of Hearing, Order of Evidence, Court Discretion, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zephaniah Gichure Ndungu
Applicant
Rwaikamba Rwathia Trading Co. Limited
Respondent
City Council of Nairobi
Respondent
Procedural Posture
Civil Suit / Ruling on Oral Application for Adjournment
Legal Issues
- 1 Whether the court should grant the plaintiff's oral application for adjournment.
- 2 Whether the court can direct the defendants to present their evidence first contrary to the usual order of proceedings.
Ratio Decidendi
The court found that while it has discretion in managing its proceedings, the Civil Procedure Rules provide a clear framework for the order of hearing, with the plaintiff's case to be heard first. The court noted that Order 17, Rule 4 allows it to proceed to determine the suit if a party fails to take necessary steps for the progress of the case, even if present in court. In this instance, the plaintiff had failed to attend court or facilitate the progress of the suit. The court was not persuaded that the circumstances justified granting an adjournment or altering the order of proceedings. Consequently, the application for adjournment was declined, and the court ordered the case to proceed.
Court Disposition
Application for adjournment declined; case to proceed.
Orders
- The application for adjournment by the plaintiff is declined.
- The case shall proceed as scheduled.
Full Case Text
Judgment text and source record
26 paragraphs
Ndungu v Rwaikamba Rwathia Trading Co. Limited & another (Environment and Land Case Civil Suit 78 of 2009) [2022] KEELC 15125 (KLR) (17 November 2022) (Ruling)
Neutral citation: [2022] KEELC 15125 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit 78 of 2009
JA Mogeni, J
November 17, 2022
Between
Zephaniah Gichure Ndungu
Applicant
and
Rwaikamba Rwathia Trading Co. Limited
1st Respondent
City Council of Nairobi
2nd Respondent
(IN THE ESTATE OF LAND PARCEL NUMBERS 209/4401/73-81, 209/4401/110-124 AND 209/440/131-133 MAKADARA NAIROBI)
Ruling
1. This matter coming for hearing of the main suit on 17/11/2022 where the plaintiff/applicant made an oral application for adjournment stating that he is unable to reach his client who is the plaintiff since 16/11/2022. That he had left him many messages but the plaintiff has not responded. The Counsel for the plaintiff therefore sought to have the defendants/respondents to give their evidence first and then the court grants the plaintiff’s advocate an adjournment to a suitable date when he will find the plaintiff who will attend court on the date the court will reserve for the plaintiff’s case.
2. The advocate in imploring the court to take the defendants’ evidence first stated that the court has unfettered powers on how to run its court and the bottom-line was to ensure that justice is served. That the Civil Procedure is only a guide but the court can decide on what processes to follow to harness justice for all.
3. The oral application was vehemently opposed by the advocates for the 1st and 2nd defendant who saw the application as a ploy to continue delaying the suit which is a 2009 case. The advocate for the 1st defendant/respondent implored the court to dismiss the plaintiff’s case. That the Civil Procedure was clear on how cases are conducted and that it is not in order that the defense should present its case firs. The Counsel of the 2nd defendant on his part stated that the undue delay that has been experienced in this case is meant to defeat equity. Further he stated that the plaintiff was procrastinating in this matter to his benefit.
4. Counsel for 2nd defendant stated that the Civil Procedure is very clear on how cases are conducted starting with the plaintiff’s case to the defense case.
Analysis and Determination 5. After listening to the submissions by the plaintiff/applicant, as well as the defendants/respondents, the court was obliged to make a determination as to whether to grant and/or refuse the application for adjournment.
6. I perused the Civil Procedure and noted that the plaintiff’s advocate has a point in the court arresting the evidence of an elderly litigant who is sick and in other circumstances a litigant traveling out the Court’s jurisdiction.
7. However, my reading of Order 17, rule 4 points to the fact that the court my proceeds and dispense with a suit in the event any party to a suit who has been given time to attend court fails to produce evidence or cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith. The ambit of this Rule is that if a party is present in court, but fails to fulfil the requirements prescribed in the Rule for which time has been granted, the court would proceed to decide the suit forthwith. Emphasis is to be laid on the words "notwithstanding such default". The default referred to is not one of non-appearance of the party but is one of non-compliance with the various steps taken for the progress of the suit for which time has been granted. If the case comes within the ambit of rule 4.
8. In the instant matter, the plaintiff has chosen not to come to court. Given the circumstances I will decline to grant the application for adjournment and order the case to proceed.
It is so ordered.DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2022. …………………MOGENI JJUDGERuling read in open court in the presence of:Mr Evans Gaturu for the PlaintiffMs Matu for the 1st Defendant/RespondentMr Ongoro for the 2nd Defendant/RespondentMs. Caroline Sagina - Court Assistant…………………MOGENI JJUDGE