Adjournment
1. When this matter was called up this morning, Mr. Mukuha and Mr. Bwire for the Plaintiff applied for an adjournment of the physical hearing scheduled for today. The reason for seeking adjournment was that, their client a resident of Israel, is advanced in age-86 years old- and was not able to travel to Kenya to attend the hearing because he is ill. Noting that this is an old matter, they nonetheless urged the Court to indulge their client by adjourning the hearing due to these interveneing circumstances. They relied on medical notes from the Plaintiff’s doctor.
Responses
2. Mr. Ochieng’ Oduol for the Defendants complained that the Plaintiff’s advocates neglected to mention to them that their client has been ill for the past two years, even when the matter was confirmed ready for hearing. He claimed that the Plaintiff’s aim for seeking an adjournment is to derail the hearing and circumvent the course of justice. He also claimed that last year, the Plaintiff has been in Kenya for holiday. He requested that the Plaintiff avails a copy of his passport complete with clear pages to confirm that he has not been travelling outside Israel.
3. Mr. Orao for the interested party did not oppose the application for adjournment of the matter.
4. Mr. Kiragu Kimani for the proposed 3rd defendant agreed with Mr. Ochieng’ Oduol. He pointed out that the plaintiff applied to join his client to these proceedings simply to scuttle the hearing; but the court was firm and directed that the joinder applications shall be determined during trial.
Analysis
5. I have considered the application and the responses.
6. On 10th February 2025, when the matter came up for mention to confirm hearing dates, there was no mention of the Plaintiff’s indisposition. On that date, this Court directed that the Plaintiff’s applications for joinder be considered during the hearing. The Court confirmed this matter for hearing for 17th and 18th February 2025.
7. The medical report by Dr. Giora Winterstein, produced by the Plaintiff to support his application for adjournment was prepared on 15th February 2025 after the hearing dates were confirmed. It was never made available to the court or the other legal counsel immediately it was procured. The report also states that his failing condition has been there in the past year. This information was also not shared with the court or the other legal counsel in good time. Rendering credence to the submission by the parties opposing adjournment that the report is one of the ways to scuttle the hearing of this case.
8. Nevertheless, the report states that the Plaintiff: -
“…should not leave the country and if at all, he should be accompanied by close medical supervision”
9. From the doctor’s opinion, the Plaintiff may travel, but accompanied by close medical supervision. The court is not without empathy. Except, it is not persuaded that the Plaintiff has laid a proper basis for his non-attendance in court.
10. Justice is to all parties-not some or one of the parties. The legal counsel admits that there shall be prejudice caused to the court and the other parties by an adjournment.
11. The plaintiff should attend the court as had been ordered-physical hearing- except in accordance with the doctor’s opinion. The plaintiff also gets the benefit that this matter was scheduled for hearing today and tomorrow. Accordingly, today’s hearing of the suit is hereby adjourned. The matter shall be heard tomorrow the 18th day of February, 2025 at 2.00pm.
12. Orders accordingly.
Dated, signed and delivered at Nairobi through Microsoft Teams online application, this 17th day of February, 2025
-------------------
F. Gikonyo M
Judge
In the presence of: -
1. Kinyua C/A
2. Mukuha for Bwire for the plaintiff
3. Ochieng Oduol for defendant
1. When this matter was called up this morning, Mr. Mukuha and Mr. Bwire for the Plaintiff applied for an adjournment of the physical hearing scheduled for today. The reason for seeking adjournment was that, their client a resident of Israel, is advanced in age-86 years old- and was not able to travel to Kenya to attend the hearing because he is ill. Noting that this is an old matter, they nonetheless urged the Court to indulge their client by adjourning the hearing due to these interveneing circumstances. They relied on medical notes from the Plaintiff’s doctor.
Responses
2. Mr. Ochieng’ Oduol for the Defendants complained that the Plaintiff’s advocates neglected to mention to them that their client has been ill for the past two years, even when the matter was confirmed ready for hearing. He claimed that the Plaintiff’s aim for seeking an adjournment is to derail the hearing and circumvent the course of justice. He also claimed that last year, the Plaintiff has been in Kenya for holiday. He requested that the Plaintiff avails a copy of his passport complete with clear pages to confirm that he has not been travelling outside Israel.
3. Mr. Orao for the interested party did not oppose the application for adjournment of the matter.
4. Mr. Kiragu Kimani for the proposed 3rd defendant agreed with Mr. Ochieng’ Oduol. He pointed out that the plaintiff applied to join his client to these proceedings simply to scuttle the hearing; but the court was firm and directed that the joinder applications shall be determined during trial.
Analysis
5. I have considered the application and the responses.
6. On 10th February 2025, when the matter came up for mention to confirm hearing dates, there was no mention of the Plaintiff’s indisposition. On that date, this Court directed that the Plaintiff’s applications for joinder be considered during the hearing. The Court confirmed this matter for hearing for 17th and 18th February 2025.
7. The medical report by Dr. Giora Winterstein, produced by the Plaintiff to support his application for adjournment was prepared on 15th February 2025 after the hearing dates were confirmed. It was never made available to the court or the other legal counsel immediately it was procured. The report also states that his failing condition has been there in the past year. This information was also not shared with the court or the other legal counsel in good time. Rendering credence to the submission by the parties opposing adjournment that the report is one of the ways to scuttle the hearing of this case.
8. Nevertheless, the report states that the Plaintiff: -
“…should not leave the country and if at all, he should be accompanied by close medical supervision”
9. From the doctor’s opinion, the Plaintiff may travel, but accompanied by close medical supervision. The court is not without empathy. Except, it is not persuaded that the Plaintiff has laid a proper basis for his non-attendance in court.
10. Justice is to all parties-not some or one of the parties. The legal counsel admits that there shall be prejudice caused to the court and the other parties by an adjournment.
11. The plaintiff should attend the court as had been ordered-physical hearing- except in accordance with the doctor’s opinion. The plaintiff also gets the benefit that this matter was scheduled for hearing today and tomorrow. Accordingly, today’s hearing of the suit is hereby adjourned. The matter shall be heard tomorrow the 18th day of February, 2025 at 2.00pm.
12. Orders accordingly.
Dated, signed and delivered at Nairobi through Microsoft Teams online application, this 17th day of February, 2025
-------------------
F. Gikonyo M
Judge
In the presence of: -
1. Kinyua C/A
2. Mukuha for Bwire for the plaintiff
3. Ochieng Oduol for defendant