[2017] KECA 306 (KLR)
The court found that although the applicant's counsel had not provided a clear explanation for his absence or arranged for another advocate to prosecute the application, this was the first request for adjournment. The court considered it desirable for the application to be determined on its merits and that the...
Source-derived case information.
- Citation
- [2017] KECA 306 (KLR)
- Parties
- Applicant: Solomon K. Rugut; Respondent: Joseph W. Mundia; Respondent: District Land Registrar, Nakuru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 327 of 2013
- Procedural Posture
- Stay Application / Application for Adjournment in Stay of Execution Pending Intended Appeal
- Outcome
- Application for adjournment allowed; hearing adjourned; costs awarded to respondent's counsel.
- Legal Topics
- Adjournment of Hearing, Stay of Execution, Restoration of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon K. Rugut
Applicant
Joseph W. Mundia
Respondent
District Land Registrar, Nakuru
Respondent
Procedural Posture
Stay Application / Application for Adjournment in Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the applicant has shown sufficient cause for adjournment of the hearing of the application for stay of execution.
- 2 Whether the respondent should be compensated for the inconvenience caused by the adjournment.
Ratio Decidendi
The court found that although the applicant's counsel had not provided a clear explanation for his absence or arranged for another advocate to prosecute the application, this was the first request for adjournment. The court considered it desirable for the application to be determined on its merits and that the respondent could be compensated by an award of costs. Therefore, the court reluctantly allowed the adjournment, balancing the interests of justice and the inconvenience caused to the respondent.
Court Disposition
Application for adjournment allowed; hearing adjourned; costs awarded to respondent's counsel.
Orders
- The application is adjourned to a date to be fixed in the registry.
- The applicant shall pay to the respondent's counsel today's costs assessed at Kshs 5,000 to be paid before the next hearing.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NYERI
SITTING IN NAKURU
(CORAM G.B.M. KARIUKI, J.A (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 327 OF 2013
BETWEEN
SOLOMON K. RUGUT................................................ APPLICANT
AND
JOSEPH W. MUNDIA......................................1ST RESPONDENT
DISTRICT LAND REGISTRAR, NAKURU.......2ND RESPONDENT
(Being an application for stay of execution in an intended appeal
fromthe Judgmentand/or Order of the High Court of Kenya
at Nakuru(Wendoh, J) dated 15th March, 2013
in
H.C.C.C. NO. 158 B OF 2005)
***************************
RULING
This application was fixed for hearing today and counsel on record for both parties were duly served. Learned counsel Mr. Harrison Kinyanjui has appeared on behalf of Mr. Kariu whose brief he holds and has sought adjournment on the ground that Mr. Kariu is not available to prosecute the application. His instructions are limited to seeking adjournment as he has not prepared for or gotten up on the application.
On his part, learned counsel Lawrence Karanja opposes the application for adjournment as he has been in Court since morning waiting for this hearing and yet no one indicated to him as a matter of courtesy that an application for adjournment would be made.
I observe that the application was filed on 9th March 2017. It relates to restoration of an appeal. This is the first application for adjournment by counsel for the applicant. It is not however clear why Mr. Kariu did not detail another counsel in good time to take up the matter on his behalf nor is it clear why he is unable to appear in Court today. It is necessary in an application for adjournment for an applicant to show that there are unavoidable circumstances beyond his control militating against his appearance in Court.
The learned counsel for the respondent has dutifully waited for this hearing since morning and has dissipated valuable time. Be that as it may, as this is the first application for adjournment, and as it is desirable that the application be determined on merit, and as counsel for the respondent can be compensated by an award of costs, I reluctantly allow the application for adjournment. The application is adjourned to a date to be fixed again in the registry.
Further, I order that the applicant shall pay to the respondent's counsel today's costs which I assess at Kshs 5,000/= to be paid before the next hearing.
Dated at Nakuru on this 30th day of May, 2017.
G.B.M. KARIUKI SC
…………………………
JUDGE OF APPEAL
I certify that this is a truecopy of the original
DEPUTY REGISTRAR