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ELCAllowed· [2019] KEELC 1858 (KLR)

Barrack Odhiambo Odero v Ezekiah Kinyangi Busaka [2019] KEELC 1858 (KLR)

Environment and Land Court
10 July 2019
GOG.M.A. Ongondo
639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a plaintiff to file the correct 1986 land sale agreement after closing pleadings, ruling a lawyer's mistake shouldn't punish the client.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Migori delivered on 10th July 2019 by G.M.A. Ongondo, Judge, on an oral application made by Mr. Agure Odero, counsel for the plaintiff, on 2nd July 2019 immediately after the close of the defendant's case. Counsel sought leave to file and serve a proper copy of a land sale agreement dated 1st September 1986, in place of an earlier agreement filed as D-Exhibit 1, contending that the omission was a curable error under Article 159(2)(d) of the Constitution and that the document was listed as number 4 in the plaintiff's list of documents dated 29th May 2017 and referred to in PW1's testimony. Mr. Abisai, counsel for the defendant, opposed the application, arguing that the matter went to the root of the case, the document had never been served, and the defendant's case had already been closed. The court, invoking Article 159(2)(d), Articles 50(1) and 23(c) on fair hearing, and authorities including Patel v East African Cargo Handling Services Ltd, Shabir Din v Ram Parkash Anand and Kanwal Sarjit Singh Dhiman v Kashavji Jivraj Shah, held that the mistake of counsel should not be visited on the client and that justice required granting the application, mindful of the overriding objective under Section 3 of the Environment and Land Court Act. The court allowed the plaintiff to file and serve the agreement within 45 days and permitted the recall of PW1, PW2, PW3, DW1 and DW2 on that document only, fixing further hearing for 25th November 2019. No costs order was made.

Key legal issues

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Whether the plaintiff's failure to file the proper land sale agreement dated 1st September 1986 was a curable error under Article 159(2)(d) of the Constitution

Holding

The court found the error curable and allowed the application, balancing the right to fair hearing against procedural technicalities

Reasoning

The court noted the agreement appeared in the plaintiff's list of documents dated 29th May 2017 and was referred to by PW1 in testimony. Relying on Article 159(2)(d) on disregarding technicalities, Articles 50(1) and 23(c) on fair hearing, and authorities including Kanwal Sarjit Singh Dhiman v Kashavji Jivraj Shah, the court held that justice required allowing the application notwithstanding the defendant's opposition and the closure of its case.

p. 1

Legal principles established

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  • Mistake of counsel should not be visited upon a client
  • Courts have discretion to grant leave to cure procedural errors in the interest of doing justice, guided by the overriding objective

Court orders

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  1. 1.Leave granted to the plaintiff to file and serve a copy of the agreement dated 1st September 1986 referred to in the testimony of PW1 and shown in the plaintiff's list of documents dated 29th May 2017, within 45 days from the date of the ruling
  2. 2.Parties at liberty to recall PW1, PW2, PW3, DW1 and DW2 to adduce evidence only with regard to the said agreement
  3. 3.Further hearing fixed for 25th November 2019

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 23(c)
  • Environment and Land Court Act, 2015Section 3

Cases cited (3)

  • Patel vs East African Cargo Handling Services Ltd
    (1974) EA 76
  • Shabir Din vs Ram Parkash Anand
    (1955) EACA Vol. 22 page 48
  • Kanwal Sarjit Singh Dhiman vs Kashavji Jivraj Shah
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court Act, 2015, Section 3 (overriding objective); Constitution of Kenya, 2010, Articles 50(1) and 23(c)

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, "Barrack Odhiambo Odero v Ezekiah Kinyangi Busaka [2019] KEELC 1858 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1858/eng@2019-07-10

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