Yusuf v Kioko (Civil Case No. 1072 of 1951) [1951] EACA 332 (1 January 1951)

## ORIGINAL CIVIL

## Before CONNELL. J.

# SHERIEF YUSUF, Plaintiff

#### v.

## PHILLIP KIOKO, Defendant

### Civil Case No. 1072 of 1951

## Appearance by defendant—No appearance by plaintiff when suit called for hearing—Civil Procedure Rules Order 9, Rule 19. Order 3—Section 97 Civil Procedure Ordinance.

The defendant appeared represented by an advocate; the plaintiff did not appear though he wrote to Court asking for an adjournment.

Held (13-12-51).—As the plaintiff had not appeared either in person or by recognized agent the Court had no choice under O. 9, rule 19 except to dismiss the suit.

Plaintiff absent unrepresented.

Morgan for defendant.

ORDER.—On 25th October, 1951, the plaintiff in person filed a hearing notice for to-day in this Court.

On 24th November, Mr. Morgan for the defendant requested witness summonses to be issued for attendance of witnesses at Machakos. On 1st December the summonses were issued.

On 3rd December, 1951, the plaintiff telegraphed this Court that he was in hospital and asked to stop the case: on 5th December, 1951, the Deputy Registrar wrote to the Medical Officer, Mombasa, that if plaintiff was too ill a medical certificate should be sent. A medical certificate was set on 6th December stating Philip Kioko Sherief (which was not the plaintiff's name) was sick.

The plaintiff has not appeared. Mr. Morgan submits he is entitled to judgment under Order 9, rule 19.

It seems to me that such rule is mandatory; the plaintiff has not appeared either in person or through a recognized agent under Order 3. Moreover, Order 15, rule 1, allowing the Court to grant an adjournment is not repeated in the new Rules of 1948. Should I then apply section 97 of the Civil Code, which allows me to make "such orders as may be necessary for the ends of justice"?

I do not see how in the face of Order 9, rule 19, I am enabled to say that where a party is in clear breach of that provision I am entitled to say that he has not in fact acted in breach of that rule.

The suit is dismissed.