Nderitu & 5 others v Ndiara Enterprise Limited [2023] KEELC 16244 (KLR)

Nderitu & 5 others v Ndiara Enterprise Limited (Environment & Land Case 5 of 2010 & Environment and Land Case Civil Suit 128 of 2020 (Consolidated)) [2023] KEELC 16244 (KLR) (8 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16244 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 5 of 2010 & Environment and Land Case Civil Suit 128 of 2020 (Consolidated)

LN Mbugua, J

March 8, 2023

Between

Bernard Mwangi Nderitu

1st Plaintiff

Hesbon Omondi

2nd Plaintiff

Francis Rumono

3rd Plaintiff

Peter Wambugu

4th Plaintiff

Stephen Kamau

5th Plaintiff

Mary Wambu (Deceased)

6th Plaintiff

and

Ndiara Enterprise Limited

Defendant

Ruling

1. This ruling relates to the applications for adjournment made by various parties. One has been made by the 2nd plaintiff in Case No. 5 of 2010 (Hesbon Omondi) on the basis that he desires to prepare for the trial as Mr. Nyamberi is no longer acting for him. Then there is an application for adjournment made by Mr. Nyamberi on the basis that PW1, one Peter Wambugu who was stood down on 2. 3.2022 is sick, Mrs. Owino for 5th plaintiff in Case No. 5 of 2010 makes the application for adjournment on the basis that one Stephen Kamau is admitted in hospital, while Mr. Bosire’s application for adjournment for the 12th defendant in Case No. 128/2020 is that the said party is not in court. I have considered the records of this court.

2. I find that previously, the court had given orders that the suit shall not be adjourned at the instance of the 5th plaintiff in Case No. 5 of 2010, who is now apparently admitted in hospital but there are no medical documents to that effect. The medical sheets availed by Mr. Nyamberi are not legible and they do not indicate that PW1 is admitted in hospital.

3. Nevertheless, I will proceed to grant the adjournment with strict directions as follows:1. That 2nd plaintiff is directed to file and serve his notice to act in person by close of business on March 9, 2023. 2.That the adjournment herein is marked as the last one on the part of plaintiffs in Case No. 5 of 2010 and defendants in Case No. 128 of 2020. 3.That the clients of Mr. Nyamberi and Mrs. Owino shall share both court adjournment fees as well as the witness expenses for the defendants in Case No. 5 of 2010 (plaintiff in ELC No. 128/2020). The same to be paid before the next court date, failure to which their suit in Case No. 5 of 2010 shall stand as dismissed while the case against them in file No. 128 of 2020 shall proceed as an undefended claim.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Nyamberi for 3rd and 4th plaintiffs in ELC No. 5 of 2010Mrs. Owino for 5th Plaintiff in ELC No. 5 of 2010 and 3rd, 11th and 1st Defendants in 128 of 2020Beatrice Kariuki for Defendant in ELC No. 5 of 2010 and Plaintiffs in ELC No. 128 of 2020Alfred Kariuki, William Kiragu, Peter Thuku, Esther Wanjiku, Jane Muthoni Representatives of DefendantsBosire for 2nd, 3rd, 4th, 6th, 7th, 8th, 10, 13th, 14th 15, 16th, 17th and 18th 12th Defendant in ELC No. 128 of 2020Hesbon Omondi for 2nd Plaintiff in ELC No. 5 of 2010Court assistant: Vanilla