Martin Guya Ouko v Agunga Adundo & 2 others [2018] KEELC 3836 (KLR)
The bottom line
#A Migori land court allowed a party to switch from written to oral submissions and question the process server, showing courts can change their own directions.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could review/vary its own directions of 21/11/2017 that the Notice of Motion be disposed of by written submissions
The court had discretion to review its directions for sufficient reason; counsel's limited-brief instructions amounted to sufficient reason
The court relied on Order 51 Rule 16 of the Civil Procedure Rules, 2010 and ELC Practice Direction No. 33(a) which mandate written submissions to expedite trial, but held that under Mbogu v Muthoni the ELC has unfettered discretion to review its own orders for sufficient reason. Counsel for the 3rd respondent had given sufficient reason, and it was the court itself that made the directions, so the review was warranted in the interest of justice.
Whether the 3rd respondent should be permitted to cross-examine the process server on his affidavits
Leave extended to the next hearing date
The court found help in Section 22(c) of the Civil Procedure Act, Order 19 rules 1 and 2 and Order 5 Rule 16 of the Civil Procedure Rules, 2010, which empower the court to order proof by affidavit, to order attendance of a deponent, and to examine the serving officer on oath and make such further orders as it thinks fit. Exercising its judicial discretion, the court found the application merited in the interest of justice.
Legal principles established
#- The High Court (read as ELC pursuant to Article 162(2)(b) of the Constitution) has unfettered discretion to review its own decrees and orders for any sufficient reason under the Civil Procedure Act and Rules
Court orders
#- 1.Order (b) granted: the directions/order of 21st November 2017 to dispose of the 3rd Respondent's application dated 17th May 2017 by way of written submissions varied and/or reviewed
- 2.Order (c) granted: leave to the 3rd Respondent to cross-examine the process server James Moracha Ntabo on the contents of his affidavits extended to the next hearing date
- 3.Order (b) granted only until the hearing and before submissions by the parties for determination of the Notice of Motion dated 17th May 2017
- Jurisdiction invoked
- Environment and Land Court jurisdiction pursuant to Article 162(2)(b) of the Constitution, 2010, read with the Civil Procedure Act (Cap 21) and Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Guya Ouko v Agunga Adundo & 2 others [2018] KEELC 3836 (KLR)", Case Analysis (2018). Not stated in the extract (interlocutory application dated 22/11/2017 within a suit with a Notice of Motion dated 17/5/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3836/eng@2018-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.