[2019] KEHC 6801 (KLR)
The court found that the absence of the 2nd defendant, who is in custody in the U.S.A, would impair his right to a fair hearing if the suit proceeded in his absence. The Attorney General, as a central party, required additional time to prepare and secure a witness statement from the 4th defendant. The court...
Source-derived case information.
- Citation
- [2019] KEHC 6801 (KLR)
- Parties
- Plaintiff: Stanovic Milan; Plaintiff: Jackson Ng’ang’a Waweru; Defendant: Hayat Akasho Ibrahim; Defendant: Baktash Akasha; Defendant: Nuri Akasha; Defendant: Boniface Ngatia Iregi; Defendant: John Khaminwa; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 540 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Adjournment
- Outcome
- Application for adjournment allowed; hearing adjourned for a limited period.
- Judges
- JK Sergon
- Legal Topics
- Adjournment of Hearing, Fair Hearing Rights, Witness Statements, Absence of Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stanovic Milan
Plaintiff
Jackson Ng’ang’a Waweru
Plaintiff
Hayat Akasho Ibrahim
Defendant
Baktash Akasha
Defendant
Nuri Akasha
Defendant
Boniface Ngatia Iregi
Defendant
John Khaminwa
Defendant
Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Adjournment
Legal Issues
- 1 Whether the hearing of the suit should be adjourned to allow the 6th defendant to record a witness statement from the 4th defendant.
- 2 Whether the absence of the 2nd defendant, who is in custody in the U.S.A, justifies adjournment of the hearing.
- 3 Whether the plaintiffs will be prejudiced by further delay in the hearing of the suit.
Ratio Decidendi
The court found that the absence of the 2nd defendant, who is in custody in the U.S.A, would impair his right to a fair hearing if the suit proceeded in his absence. The Attorney General, as a central party, required additional time to prepare and secure a witness statement from the 4th defendant. The court considered the need to avoid indefinite delay but determined that a limited adjournment was justified to allow parties to make necessary arrangements, including possible withdrawal, splitting the case, or arranging for testimony by video link. The court exercised its discretion in favour of the applicants and granted the adjournment.
Court Disposition
Application for adjournment allowed; hearing adjourned for a limited period.
Orders
- The hearing of the suit is adjourned for a limited period to enable parties to make necessary arrangements as outlined in the ruling.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 540 OF 2007
STANOVIC MILAN...............................1ST PLAINTIFF
JACKSON NG’ANG’A WAWERU.......2ND PLAINTIFF
-VERSUS-
HAYAT AKASHO IBRAHIM............1ST DEFENDANT
BAKTASH AKASHA.........................2ND DEFENDANT
NURI AKASHA..................................3RD DEFENDANT
BONIFACE NGATIA IREGI............4TH DEFENDANT
JOHN KHAMINWA...........................5TH DEFENDANT
ATTORNEY GENERAL.....................6TH DEFENDANT
RULING
1) When this suit came up for hearing on 27th May 2019, Mr. Siro,learned litigation counsel, on behalf of the Hon. Attorney General, the 6thdefendant herein, applied for an adjournment to enable him record a witness statement from Boniface Ngatia Iregi, the 4thdefendant. Mr. Siro informed this court that the aforesaid individual who retired from the police service had called him to express his willingness to be a witness of the 6thdefendant.
2) Mr. Machina, learned advocate appeared as holding brief for Mr.Wandugi for Baktash Akasha, the 2nddefendant herein, too applied for an adjournment on the basis that the 2nddefendant has not given him instructions since he is in custody in the U.S.A over another case pending in the U.S.A court.
3) Dr. Khaminwa, learned Senior counsel (SC) appearing for the 1s and 3rd defendants supported the application for adjournmentmade by the two learned counsels arguing that the AttorneyGeneral should be given ample time to prepare himself for thehearing of this case. The learned senior counsel also pointedout that it is important for the 2nddefendant to be present incourt at the hearing of this case.
4) Mr. Ndambiri, learned advocate for Stanovic Milan, the 1stplaintiff, opposed the application for adjournment by the 6thdefendant stated that there is no basis at all. The learned advocate pointed out that the 4thdefendant should have filed a witness statement long time ago since he is a party to this suit. Mr. Ndambiri further argued that there is no evidence to show that the 2ndwas out of jurisdiction of this court.
5) Mr. Wetangula, learned advocate for Jackson Ng’ang’a Waweru,the 2ndplaintiff herein, opposed the application for adjournment and adopted the submissions of Mr. Ndambiri. The learned counsel stated that the defendants have all along had no desire to proceed with the hearing of this case. He pointed out that on 7thMary 2015, all the defendants were given a chance to file witness statements but none has complied with those directions.
6) At the time of writing this ruling, the 2nd plaintiff filed a noticedated 28. 5.2019 to withdraw the suit as against the 2nddefendant. However, the suit by the 1stplaintiff as against the 2nddefendant still stands. There is no doubt that Baktash Akasha, the 2nddefendant is being held in custody in the U.S.A and therefore he cannot attend court. He has been sued jointly and severally with the other defendants. If this suit proceeds for hearing in his absence, his right to a fair hearing will have been impaired.
7) The question which keeps on lingering in my mind is for howlong will this suit be kept pending because of the 2nddefendant’s absence. In order to avoid the matter procrastinating further, parties to this suit will be forced to make hard choices from various options.First, the suit as against the absent defendant may be withdrawn.Secondly, the case as against the 2nddefendant can be split and kept in abeyance to await his arrival from the U.S.A.
Thirdly, the parties concerned can make arrangements to have the 2nd defendant testify by video link.
8) However, as of now, I am satisfied that Mr. Muchina has put upa strong argument which receives the favour of this to adjourn the hearing of this suit for a limited period to enable parties make hard choices as alluded hereinabove.
9) I have also considered the arguments put forward by the Hon.Attorney General and the responses made in opposition.
10) With respect, I agree with the submissions of Dr. Khaminwa S.Cthat the Hon. Attorney General is a central player in this saga. The Attorney General participated in the prosecution of the plaintiffs in the criminal case which gave rise to this suit. The evidence from the 5thdefendant is very critical in a fair determination of this case.
11) For this reason, I will exercise my discretion in favour of the 5thdefendant and have the hearing of this suit adjourned.
Dated, Signed and Delivered at Nairobi this 29th day of May, 2019.
............................
J. K. SERGON
JUDGE
In the presence of:
……………………………. for the Plaintiff
……………………………. for the Defendants