[2022] KEELC 1989 (KLR)
The court found that although it was not impressed by the conduct of both counsels, who appeared to have conspired to cause an adjournment, it would reluctantly grant the adjournment. This was because the defendant's advocate holding brief was unprepared to proceed and had acceded to the adjournment, which could...
Source-derived case information.
- Citation
- [2022] KEELC 1989 (KLR)
- Parties
- Plaintiff: Silas Wanyonyi Mukhebi; Defendant: John Kitui Wanyonyi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 39 of 2014
- Procedural Posture
- Land Case / Ruling on Application for Adjournment
- Outcome
- Adjournment granted; no costs of the day to the defendant; adjournment fees to be shared equally; defence hearing set for 8/3/2022 as last adjournment.
- Legal Topics
- Adjournment of Hearing, Court Discretion, Costs of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Wanyonyi Mukhebi
Plaintiff
John Kitui Wanyonyi
Defendant
Procedural Posture
Land Case / Ruling on Application for Adjournment
Legal Issues
- 1 Whether the plaintiff is entitled to an adjournment of the defence hearing on grounds of unpreparedness.
- 2 Whether the court should award costs of the day to the defendant upon granting the adjournment.
- 3 Whether the conduct of counsel in seeking adjournments without adequate preparation is acceptable.
Ratio Decidendi
The court found that although it was not impressed by the conduct of both counsels, who appeared to have conspired to cause an adjournment, it would reluctantly grant the adjournment. This was because the defendant's advocate holding brief was unprepared to proceed and had acceded to the adjournment, which could prejudice the defendant if the case proceeded. The court emphasized that adjournments are discretionary and must be judiciously exercised, requiring satisfactory reasons. The court denied the defendant costs of the day due to the defence counsel's unpreparedness and ordered that adjournment fees be borne equally by both parties. The court set a new hearing date and warned that it...
Court Disposition
Adjournment granted; no costs of the day to the defendant; adjournment fees to be shared equally; defence hearing set for 8/3/2022 as last adjournment.
Orders
- Adjournment of the defence hearing is granted.
- No costs of the day are awarded to the defendant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 39 OF 2014
SILAS WANYONYI MUKHEBI.....................................................................PLAINTIFF
VERSUS
JOHN KITUI WANYONYI...........................................................................DEFENDANT
RULING
1. The court is ready to proceed with the hearing but the plaintiff has applied for adjournment on account of unpreparedness to take the defence hearing proceedings. The application has not been opposed because, in the words of the defence counsel, he wants “to be fair to the plaintiff’s side”, after the plaintiff’s case has been closed.
2. This court is not impressed at all by the conduct of the learned counsel who have appeared today in the matter. It appears that both have conspired to cause an adjournment. It should be borne in mind by all counsel and anyone who is sent to Court by a party to hold brief for them that there is no room for litigation by instalments. When a person/learned counsel accepts instructions to hold brief to in a matter, the instructions should be full and not limited to an adjournment or the specific issue that he/she is to address the court on. It is not an automatic right for a party that once he/she seeks an adjournment it shall be granted. There have to be satisfactory reasons to be advanced to court in terms of Order 12 Rule 3of theCivil Procedure Rules. For that reason a person who moves the court must be prepared for any eventuality. Adjournments are granted by courts on a discretionary basis. But the discretion has to be judiciously exercised and supported by reasonable evidence or facts.
3. I have considered the issues herein. I could have denied the adjournment but because the defendant himself is in court and ready to proceed but the advocate holding brief for his lawyers has acceded to the adjournment, I will reluctantly grant the adjournment since it appears to me that the advocate holding brief for his lawyers seems either not prepared for his case or has a soft spot for the adverse side and that may prejudice the defendant if the case proceeds.
4. For the reasons of unpreparedness of the defence counsel to press on for the hearing of the defence case, I will not grant the defence costs of the day. The adjournment is granted and the parties shall bear court adjournment fees equally. Defence hearing shall be conducted on 8/3/2022 and it shall be a last adjournment for him.
DATED, SIGNED AND DELIVERED AT KITALE ON THIS 27TH DAY OF JANUARY, 2022.
DR. IUR FRED NYAGAKA
JUDGE, ELC, KITALE.