Fazal v Horus Limited & 6 others (Environment & Land Case 220 of 2013) [2017] KEELC 3872 (KLR)
The bottom line
#Kenya's Environment and Land Court refused a company more chances to delay a land case, ruling courts will not help parties who deliberately stall justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court should exercise its discretion to set aside the order of 15th November 2016 refusing an adjournment and allow the 1st Defendant to re-open its case
The application was dismissed. The 1st Defendant had exhibited persistent delay - late appearance, late defence, failure to file witness statements and documents despite orders - and gave no credible explanation, the supporting witness statement being authored by a non-director with no authority shown.
The court applied the settled principles that discretionary power to set aside orders exists to relieve against accident, inadvertence or excusable mistake, but not to aid deliberate obstruction or delay. The 1st Defendant's history of adjournments on the basis that its directors resided abroad was contradicted by the fact that the proposed witness statement was signed by a Watamu resident with no shown authority or explanation of absence abroad. The application was therefore an afterthought and a delaying tactic.
Legal principles established
#- The power to set aside an order declining an adjournment is discretionary and is meant to prevent injustice from accident, inadvertence or excusable mistake, but is not designed to assist a party who deliberately obstructs or delays the cause of justice.
Court orders
#- 1.The Notice of Motion dated 2nd February 2017 seeking review of the orders of 15th November 2016 and leave to re-open the case is dismissed with costs
- 2.The Deputy Registrar is directed to remit the file to the Honourable Justice Angote in Machakos for preparation of judgment and/or further directions
- 3.The judgment shall be delivered on notice
- Jurisdiction invoked
- Original jurisdiction over land disputes and inherent/civil procedure review powers (application for review and setting aside of interlocutory orders; third-party notice against the 7th Defendant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fazal v Horus Limited & 6 others (Environment & Land Case 220 of 2013) [2017] KEELC 3872 (KLR)", Case Analysis (2017). Not stated in the extract (suit filed 4th December 2013, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3872/eng@2017-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.