[2016] KEELC 1091 (KLR)
The court found that both parties had adequate notice of the hearing date, which had been fixed eight months prior, and neither party nor their witnesses attended court. The advocates' presence did not satisfy the requirement of party attendance under Order 12 Rule 1 of the Civil Procedure Rules. The court exercised...
Source-derived case information.
- Citation
- [2016] KEELC 1091 (KLR)
- Parties
- Plaintiff: Sukhdev Singh Laly; Defendant: Janet Leeland; Defendant: Adam Frank Thorogood
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 410 of 2008
- Procedural Posture
- Land and Property Suit / Ruling on Hearing Date; Dismissal for Non Attendance
- Outcome
- suit dismissed for non-attendance; no order as to costs
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Non Attendance, Order 12 Rule 1, Pre Trial Compliance, Adjournment Requests
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sukhdev Singh Laly
Plaintiff
Janet Leeland
Defendant
Adam Frank Thorogood
Defendant
Procedural Posture
Land and Property Suit / Ruling on Hearing Date; Dismissal for Non Attendance
Legal Issues
- 1 Whether the suit should be dismissed for non-attendance by both parties on the hearing date.
- 2 Whether the advocates' presence without parties satisfies the requirements of Order 12 Rule 1 of the Civil Procedure Rules.
Ratio Decidendi
The court found that both parties had adequate notice of the hearing date, which had been fixed eight months prior, and neither party nor their witnesses attended court. The advocates' presence did not satisfy the requirement of party attendance under Order 12 Rule 1 of the Civil Procedure Rules. The court exercised its discretion to dismiss the suit, noting that the parties, not the court, were responsible for the delay and lack of prosecution. No sufficient cause was shown to justify an adjournment or to prevent dismissal. The court made no order as to costs.
Court Disposition
suit dismissed for non-attendance; no order as to costs
Orders
- The suit is dismissed for non-attendance by both parties.
- No order is made as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC CASE NO. 410 OF 2008
SUKHDEV SINGH LALY…………………………………….……PLAINTIFF
VERSUS
JANET LEELAND……………………………….…………1ST DEFENDANT
ADAM FRANK THOROGOOD……………………………..2ND DEFENDANT
RULING
A pre-trial conference in this suit was held on 25/5/2015. The parties were directed to comply with Order 3, 7 and 11 of the Civil Procedure Rules within sixty days. Hearing of the suit was fixed to take place on 21/1/2016, today.
On the hearing date, advocate Kimani for the Plaintiff told the court that he had lost contact with his client. He conceded that today’s hearing had been fixed in court. He, however, sought an adjournment as he had no witnesses.
Mr. Omari, holding brief for Mr. Ngaiywa for the Defendants, told the court that he had also been unable to make contact with his clients. As a result he said that he had no witnesses. For this reasons he sought an adjournment.
I do note that today’s hearing date was fixed on 26/5/2015, almost eight months ago. The parties, therefore, had adequate time to prepare themselves for the hearing of this suit.
It is my view that the parties are not eager to have this suit heard without further delay. It is noted that the public has a perception that courts of law are responsible for delays in the hearing and determination of the suits. This case constitutes a veritable demonstration that in many cases courts are not to blame for a case such as this one; the parties are to be blamed for resultant delays. Courts have been lampooned and demonized as veritably natural authors of circumstances which lead to the delay in hearing and determining cases. Some cases such as this one do debunk such perceptions.
In this case, the court clerk, just to confirm what the parties advocates had told the court, called out, outside court, the names of the parties. The parties were nowhere near the court. They were absent.
I wish to be guided by the provisions of Order 12 Rule 1 which states: - “If on the day fixed for hearing outside the court neither party attends, the court may dismiss the suit.”This is a discretionary power granted to the court to handle situations such as this one where the parties are not interested in having their suits heard in an expeditious manner. This power, must however, be exercised in a proportionate and judicious manner. In the present circumstances, the parties have not demonstrated to the satisfaction of their court that this suit should not be dismissed. Yes, the advocates representing the parties were in court, but they are not parties as envisaged by code 12 Rule 1. I, therefore dismiss this suit. I make no award in respect of costs.
It is so ordered.
Delivered in open court at Nairobi this 26th day of January, 2016 in the presence of: -
Court clerk – Daniel
Kimani for Plaintiff
Kibanya holding brief Ngaiywa for Defendant
P.M. NJOROGE
JUDGE