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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 3306 (KLR)

Ngugi Kagia v Buci Rotuba Limited [2019] KEELC 3306 (KLR)

Environment and Land Court
22 May 2019
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Nakuru land court gave a defendant another chance to be heard after missing its hearing, but refused to move the case to a different court.

What this practically means

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Executive summary

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By Notice of Motion dated 30th July 2018, the defendant, through its manager Michael Mugo Mwangi, sought setting aside of the orders of 19th July 2018 under which the plaintiff's and defence cases were closed after the defendant's counsel and witnesses failed to attend, a reopening of the proceedings for a fresh hearing, and transfer of the suit to the Naivasha Chief Magistrate's Court. The plaintiff opposed the application through a preliminary objection on res judicata grounds and on the defendant's failure to comply with earlier costs orders of 6th March 2018. The court reviewed the record of 19th July 2018, when the adjournment application was dismissed, the plaintiff's case was heard and closed, and the defence case was closed at the plaintiff's instance. On transfer, the court held the issue res judicata, since the court had implicitly declined transfer on 19th July 2018 by directing the hearing to proceed; it added that a partly-heard suit should not be transferred as the hearing would begin de novo, causing delay, expense and injustice. On setting aside, applying Mbogoh & Another v Shah as restated in James Kanyiita Nderitu, the judge exercised an unfettered discretion, noting no inordinate delay (the application was filed about 10 days later) and that the nature of the land dispute warranted giving the defendant another chance to be heard. The court set aside the closure orders and allowed PW1 to be recalled purely for cross-examination and re-examination, with costs of the application to the plaintiff. Judgment delivered at Nakuru on 22nd May 2019 by D. O. Ohungo J.

Key legal issues

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01

Res judicata regarding transfer of the suit

Holding

The request for transfer was implicitly declined on 19th July 2018 when the court ordered the hearing to proceed, so the issue is res judicata and cannot be revisited

Reasoning

The court applied section 7 of the Civil Procedure Act, citing John Florence Maritime Services. It found the elements met in substance: the same parties, the same issue (transfer), and an implicit determination by the court when it ordered the hearing to proceed despite counsel's request for transfer. The court therefore held it functus as to that issue.

p. 2
02

Discretion to set aside the closure of the parties' cases

Holding

The orders of 19th July 2018 closing the plaintiff's and defence cases were set aside in the interest of justice, the application having been filed promptly (about 10 days) with no inordinate delay

Reasoning

Applying Mbogoh & Another v Shah as restated in James Kanyiita Nderitu, the judge exercised an unfettered discretion. He noted the date had been fixed by consent, that the application was filed slightly over 10 days later (no inordinate delay), and that given the nature of the land dispute the defendant should be given another chance to be heard in the interest of justice.

p. 2
03

Transfer of a partly-heard suit

Holding

Even if not res judicata, transfer would not be granted because the case is partly heard and transfer would restart the hearing de novo

Reasoning

The court reasoned that starting the hearing afresh at Naivasha would occasion unnecessary delay, expense and injustice to the parties, outweighing the convenience relied on by the defendant. This served as an independent alternative ground for refusing transfer even had res judicata not applied.

p. 2

Legal principles established

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  • The court has an unfettered discretion whether or not to set aside orders made on a date fixed by consent, guided by the principles in Mbogoh & Another v Shah, considering delay, prejudice and the interests of justice
  • Where a court declines an oral request for transfer by ordering the hearing to proceed, that issue becomes res judicata and cannot be revisited
  • A partly-heard suit should not be transferred as that would require the hearing to start de novo, occasioning delay, expense and injustice

Court orders

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  1. 1.The orders of 19th July 2018 closing the plaintiff's and defence cases are set aside
  2. 2.PW1 shall be recalled purely for cross-examination and re-examination
  3. 3.Costs of the application shall be to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 10 rule 11 (as quoted within James Kanyiita Nderitu citation)

Cases cited (7)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Mbogo & Another v. Shah
    (supra)
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Original jurisdiction over a land dispute before the Environment and Land Court; application under the Civil Procedure Act and Civil Procedure Rules

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, "Ngugi Kagia v Buci Rotuba Limited [2019] KEELC 3306 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3306/eng@2019-05-22

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