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Court of AppealDismissedELC Appeal No. 1468 of 2013 (appeal from ELC No. 1468 of 2013)· [2024] KECA 1775 (KLR)

Govani v Shah & another; Jaff (Third party) (Civil Appeal 185 of 2019) [2024] KECA 1775 (KLR)

Court of Appeal
6 December 2024
ASAsike-MakhandiaSKS. ole KantaiGNG. W. Ngenye-Macharia
3,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a landowner's appeal, ruling that parties who miss court deadlines must provide real evidence explaining the delay before asking for more time.

What this practically means

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Executive summary

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The respondents filed suit in the Environment and Land Court seeking a permanent injunction and damages for trespass over L.R. No. 4242/46 Kitusuru. At the hearing on 7th March 2019, after the 1st respondent testified, the appellant's counsel served the respondents with his witness statement and bundle of documents and sought an adjournment and leave to file them out of time. The learned Judge declined, holding the matter was old, that the appellant had been granted leave on 16th January 2019 to file and serve within 7 days and had not complied, and directed that the appellant rely only on his defence. The appellant appealed on ten grounds, condensed into three, contending that the Judge erred in refusing to exercise her discretion to grant leave and an adjournment, and that the refusal violated his right to a fair hearing under Articles 48 and 50 of the Constitution. The respondents urged the Court not to interfere with the trial court's discretion, citing Mbogo v Shah. The Court of Appeal identified a single issue: whether the Judge properly exercised her discretion. Applying the principles in Mbogo v Shah and its own decision in JMM, the Court found the appellant had approximately two months to comply with the directions and failed. The reasons advanced - the then counsel's health challenges and the file being in the Judge's chambers - were unsupported and were not raised before the trial court. The Court held that a party in default seeking discretion must place relevant material before the court, a burden the appellant failed to discharge. The appeal was dismissed with costs to the respondents, affirming the trial court's directions of 7th March 2019.

Key legal issues

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01

Whether the trial Judge properly exercised her discretion in refusing an adjournment and refusing to admit the appellant's late-filed witness statement and documents

Holding

The appeal is dismissed; the Judge properly exercised her discretion.

Reasoning

The appellant was granted leave on 16th January 2019 to file and serve documents within 7 days and had approximately two months to comply but did not. The reasons advanced - counsel's alleged health challenges and the file being in the Judge's chambers - were unsupported by any material and were never raised before the trial court. A party seeking discretion in its favour despite default must place relevant material before the court, a burden the appellant did not discharge.

p. 6

Legal principles established

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  • An appellate court will not interfere with the exercise of a trial court's discretion unless satisfied the decision is clearly wrong, because of misdirection, consideration of wrong matters, or failure to consider relevant matters leading to a wrong conclusion.
  • A party in default who seeks the court's discretion bears the burden of placing relevant material before the court to justify exercise of discretion in its favour.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 17
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 3, Rule 3
  • Civil Procedure RulesOrder 7, Rule 17

Cases cited (4)

  • Jafeth Pasi Kilonga and 8 others vs. Mombasa Autocare Limited
    (2015) eKLR
  • Mbogo vs. Shah
    (1968) EA 93
  • Kenya Ports Authority vs. Kuston (Kenya) Limited
    (2009) 2EA 212
  • JMM
    (2023) KECA 99 (KLR)
On appeal from
Environment and Land Court
ELC No. 1468 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act and appellate jurisdiction over the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Govani v Shah & another; Jaff (Third party) (Civil Appeal 185 of 2019) [2024] KECA 1775 (KLR)", Case Analysis (2024). ELC Appeal No. 1468 of 2013 (appeal from ELC No. 1468 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1775/eng@2024-12-06

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