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ELCPartially AllowedNot stated in the excerpt (defendant's application dated 15 November 2013)· [2014] KEELC 183 (KLR)

Samuel Kiplagat Namini & 2 others v Town Council of Eldama Ravine & 8 others [2014] KEELC 183 (KLR)

Environment and Land Court
9 October 2014
3,858 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court reopened a land case involving a public bus park after a county government missed its hearing, but ordered it to pay the winners' costs first.

What this practically means

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Executive summary

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This is a first-instance ruling of the Environment and Land Court at Eldoret (Munyao Sila J) on the 1st defendant's application dated 15 November 2013 seeking review, vacation or setting aside of the judgment of 17 July 2013 and re-opening of the defence case. The underlying suit, filed in 2008, concerned declared ownership of two land parcels in Eldama Ravine, with the plaintiffs seeking declarations of ownership, eviction, mesne profits and a permanent injunction; the Town Council counterclaimed that the plots were public utility plots irregularly alienated. At the hearing of 15 May 2013, counsel for the 1st defendant closed the defence case without calling any witness, and judgment was entered for the plaintiffs. The incoming County Government of Baringo, served with the decree in November 2013, blamed the transition period and alleged counsel acted without instructions. The court held that no substitution of the County Government was required, since suits against defunct local authorities continue as filed by operation of law under Section 59 of the Urban Areas and Cities Act. It found insufficient evidence that counsel acted without instructions and warned of the high threshold for such claims, noting the alternative remedy of suing the advocate. However, because the subject matter was said to be public land - the only bus park in Eldama Ravine - the court invoked Article 159(2)(d), found sufficient reason to review, set aside the judgment of 17 July 2013, and re-opened the defence case for the 1st defendant only, conditionally on payment of throw-away costs of Kshs. 30,000/= within 30 days, failing which the review order lapses automatically.

Key legal issues

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01

Whether substitution of the County Government was required before the suit could proceed

Holding

No - suits against defunct local authorities continue automatically against the successor County Government by operation of law under Section 59 of the Urban Areas and Cities Act

Reasoning

Relying on Section 59 of the Urban Areas and Cities Act and prior decisions, the court held that litigation commenced against defunct local authorities is automatically assigned to the County Government that took over their functions. The applicant's argument that failure to substitute was an error apparent on the face of the record therefore failed.

p. 5
02

Whether counsel's closure of the defence case without instructions justified review

Holding

The court was not convinced on the evidence that Mr. Onkoba acted without instructions, and noted the high threshold required; ordinarily the remedy would be against the advocate

Reasoning

It is presumed that counsel on record has full instructions, rebuttable only by concrete evidence. The applicant produced no affidavit from the advocate and no complaint to the Law Society of Kenya. Even if established, setting aside is not automatic; the court weighs prejudice and whether damages against the advocate would suffice.

p. 5
03

Whether the public interest in public land justified review as a sufficient reason

Holding

Yes - the alleged public utility status of the suit land (the only bus park in Eldama Ravine) constituted sufficient reason to review and set aside the judgment

Reasoning

Although the applicant would fail on a strict application of Order 45, the subject matter was said to be public land held for the public benefit, so no personal benefit was at issue capable of compensation in damages. Invoking Article 159(2)(d), the court held the public deserved a hearing on the counterclaim.

p. 6

Legal principles established

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  • Litigation against defunct local authorities continues as filed against the successor County Government by operation of law; no substitution or amendment of pleadings is required
  • A litigant must meet an exceptionally high threshold to set aside a judgment on the basis that counsel failed to adduce evidence; where damages against the advocate suffice, that is the preferred remedy
  • Courts may depart from procedural technicalities where great public interest, such as the retention of public land, is at stake

Court orders

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  1. 1.The judgment of 17 July 2013 is reviewed and set aside
  2. 2.The defence case is re-opened in respect of the 1st defendant only
  3. 3.The applicant to pay throw-away costs of Kshs. 30,000/= to the plaintiffs within 30 days, failing which the order for review will automatically be set aside

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(a)
  • Civil Procedure RulesOrder 45 Rule 5
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1, 1A and 1B
  • Government Land Act CAP 280Repealed
  • Urban Areas and Cities Act, Act No. 13 of 2011Section 59
  • Constitution of KenyaArticle 159(2)(d)
  • Local Government Act (Cap 265)Repealed
  • County Government Act, Act No. 17 of 2012Section 134

Cases cited (3)

  • Kumenda & Another vs The Clerk, Municipal Council of Kisii & 6 Others
    Kisii ELC Miscellaneous Civil Application No.3 of 2013 (2013) eKLR
  • Titus Gatitu Njau v Municipal Council of Eldoret
    Eldoret E&L No 207 of 2012
  • Reverend Jackson Mutune v The Trustees Redeemed Church
    (2012) eKLR
Jurisdiction invoked
Order 45 Rule 1(a) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1, 1A and 1B of the Civil Procedure Act; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Kiplagat Namini & 2 others v Town Council of Eldama Ravine & 8 others [2014] KEELC 183 (KLR)", Case Analysis (2014). Not stated in the excerpt (defendant's application dated 15 November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/183/eng@2014-09-09

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