Trust Land Developers Limited v Kenya Agricultural Research Institute & 3 others [2017] KEELC 1846 (KLR)

Environment and Land Court

31 July 2017

EOE.O. Obaga

701 words in judgment

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The bottom line

A Kenyan land court refused to strike out an old case over late filings and a botched notice of change, prioritising a hearing over procedural technicalities.

What this practically means

Executive summary

This interlocutory ruling of the Environment and Land Court at Nairobi, delivered by E.O. Obaga J on 31st July 2017, resolved two preliminary issues raised by Mrs Mbabu for the second defendant before the hearing of a long-standing land suit. First, she argued that the plaintiff had not complied with directions given on 17th May 2016 by Justice Okong'o, requiring the plaintiff to file its bundle of documents and witness statements within 21 days, failing which the plaint would stand struck out; the bundle was in fact filed on 23rd September 2016. Secondly, she contended that Sagana, Biriq & Co. Advocates were not properly on record when they filed the plaintiff's list of witnesses and documents on 6th June 2016, because the notice of change filed on 20th May 2016 mistakenly named Muriungi & Co. Advocates as the outgoing firm when the advocates actually on record were Makumi, Mwangi & Wang'ondu Advocates. Mr Anyega for the plaintiff conceded the mistake in the notice of change, pointing to a corrected notice filed on 7th June 2016. The court confirmed the record but held the objections lacked merit: the second defendant's advocates had appeared before Justice Okong'o on 15th December 2016, confirmed compliance and taken a hearing date, and no prejudice had been caused. The court deemed all documents not filed per the directions to be properly filed and directed the parties to fix the case for hearing on a priority basis. No costs order was made.

Key legal issues

Whether the plaint stood struck out for late filing of the bundle of documents and witness statements

Holding

The plaint did not stand struck out; the late filing caused no prejudice and the objection was waived by not being raised on 15th December 2016 when all advocates confirmed compliance

Reasoning

The plaintiff did not file its bundle within the 21 days directed, but it filed at least lists of witnesses and documents. The second defendant's advocates were present on 15th December 2016 and confirmed compliance before a hearing date was taken. The court found the late filing caused no prejudice to the second defendant and that the objection came too late in an old case that should proceed to hearing on priority.

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Whether Sagana, Biriq & Co. Advocates were properly on record when they filed the plaintiff's documents on 6th June 2016

Holding

They were properly on record; the erroneous notice of change (naming Muriungi & Co. instead of Makumi, Mwangi & Wang'ondu) was rectified by a proper notice filed on 7th June 2016

Reasoning

The record showed the firm filed a notice of change on 26th May 2016 which mistakenly identified the outgoing firm. A correct notice was filed on 7th June 2016, a day after the lists were filed. The court held that the subsequent rectification cured the defect and that the filings made the previous day should not be disregarded.

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Legal principles established

An irregular or erroneous notice of change of advocates that is subsequently rectified does not invalidate filings made the previous day by the incoming firm
A party who does not object to non-compliance with directions at the earliest opportunity cannot later insist on strict compliance where no prejudice results
Courts should favour expeditious disposal of old cases over striking out suits on procedural technicalities

Court orders

1.All documents not filed in accordance with the directions of the Court deemed to have been properly filed
2.The parties to fix the case for hearing on a priority basis

Jurisdiction invoked: Inherent case-management and procedural powers of the Environment and Land Court over a pending suit (no specific constitutional/statutory provision cited)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Trust Land Developers Limited v Kenya Agricultural Research Institute & 3 others [2017] KEELC 1846 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1846/eng@2017-07-31

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