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ELCDismissedNot stated in judgment· [2024] KEELC 5418 (KLR)

Obila v Aroko (Sued as personal and legal representative of the Estate of the Onditi Ouma (Deceased) & 4 others (Environment & Land Case 02 of 2017) [2024] KEELC 5418 (KLR)

High Court of Kenya
15 July 2024
GOG.M.A. Ongondo
477 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to close a defence case for non-attendance, ruling the right to be heard outweighs delay, but only granted a final adjournment.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered by G.M.A. Ongondo, Judge, at Migori on 15th July 2024. The suit, pending for approximately seven years and part-heard, was scheduled for hearing of the defendants' case. Plaintiff's counsel, Ms. W. Ochwal, made an oral application that the defendants' case be marked as closed, on the grounds that the plaintiff's case had been closed on 6th July 2023, the suit had been in court for seven years contrary to Article 159(2)(b) of the Constitution (justice shall not be delayed), and the last adjournment had been sought by the defendant's counsel. Ms. Bosire, for the 1st defendant, opposed the application, explaining that the 1st defendant was indisposed, information received that morning, and sought a last adjournment in the interest of a fair hearing, citing prior proceedings of 17th January 2024 when the hearing was adjourned at the plaintiff's instance. The 2nd to 5th defendants were absent but duly served per an affidavit of service sworn 11th July 2024. The court held that while the suit was of age and justice must not be delayed, the right to be heard is fundamental, citing Articles 25(c), 48, 50(1) and 159(2)(b) and the case of James Kanyiita Nderitu v Marios Philotas Ghikas & others (2016) eKLR. Finding the reasons for non-attendance valid, the court disallowed the application with costs in the cause, granted the defendants a last adjournment, fixed the defence case for priority hearing on 23/9/2024, required the 1st defendant to produce evidence of indisposition, and directed plaintiff's counsel to serve the 2nd to 5th defendants.

Key legal issues

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Whether the defence case should be closed for non-appearance of the 1st defendant

Holding

Application disallowed; a last adjournment granted on condition the 1st defendant avails proof of indisposition

Reasoning

The court acknowledged the suit was of age and invoked Article 159(2)(b) that justice shall not be delayed. However, the right to be heard is fundamental, and the 1st defendant's counsel explained the absence by the defendant's indisposition communicated that morning. Noting earlier adjournments had been at the plaintiff's instance, the court found the reasons valid and granted a final indulgence subject to production of evidence of indisposition.

p. 2

Legal principles established

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  • Justice shall not be delayed; the right to be heard is fundamental and permeates the entire justice system, warranting a last adjournment despite the age of the suit

Court orders

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  1. 1.The plaintiff's application to have the defence case closed is disallowed with costs in the cause
  2. 2.Hearing of the defendants' case to proceed on priority on 23/9/2024; a last adjournment is granted to the defendants
  3. 3.The 2nd, 3rd, 4th and 5th defendants to be served by the plaintiff's counsel
  4. 4.The 1st defendant's counsel to avail evidence of the 1st defendant's indisposition on the next hearing date
Jurisdiction invoked
Inherent case-management powers and Article 159(2)(b) of the Constitution of Kenya 2010 (justice shall not be delayed); suit itself not stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Obila v Aroko (Sued as personal and legal representative of the Estate of the Onditi Ouma (Deceased) & 4 others (Environment & Land Case 02 of 2017) [2024] KEELC 5418 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5418/eng@2024-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.