Stanovic Milan & Jackson Ng’ang’a Waweru v Hayat Akasho Ibrahim, Baktash Akasha, Nuri Akasha, Boniface Ngatia Iregi, John Khaminwa & Attorney General [2019] KEHC 6801 (KLR)

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