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ELCDismissedNot stated in the judgment extract (consolidated suits filed 13th May 2010 and 14th February 2011)· [2020] KEELC 2408 (KLR)

Samuel Charo Kitsao & 34 others v Mombasa Cement Limited [2020] KEELC 2408 (KLR)

Environment and Land Court
27 May 2020
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to reopen a concluded land case, ruling that deliberate delay and unsupported excuses don't earn a second chance.

What this practically means

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Executive summary

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Before the Environment and Land Court at Malindi were two applications arising from a judgment delivered on 11th October 2018 in consolidated suits filed in 2010 and 2011, in which the Plaintiffs sought injunctions against Mombasa Cement Ltd over land at Takaungu, Kilifi County. The Defendant's application sought a temporary stay of execution, setting aside of the judgment, and re-opening of the defence case, attributing the absence of its witness at the hearing of 4th December 2017 to the illness of the witness's wife. The Court found no evidence supporting that claim; the record showed Counsel had been ready at 9.00 a.m. and sought an adjournment at 11.30 a.m. without mentioning illness, and the matter had been adjourned at least eight times previously. Applying Order 10 Rule 11 and the Shah v Mbogo principles, the Court held the Defendant deliberately sought to delay and obstruct the conclusion of the matter and dismissed the application. The second application by the Trustees of the Mazrui Community (Welfare and Development) Wakf Lands Trust sought joinder as Interested Parties, relying on the judgment in Mombasa HCCC No. 185 of 1991 declaring the suit property a Wakf of the Mazrui. The Court held the applicants had not shown their presence was necessary for effectual adjudication of a suit already concluded between the parties, nor any conflict between the earlier judgment and its own determination, and dismissed that application too. The Plaintiffs were awarded the costs of both applications.

Key legal issues

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01

Setting aside judgment under Order 10 Rule 11

Holding

The Defendant failed to demonstrate excusable mistake or inadvertence; the application was dismissed

Reasoning

The Court has unfettered but judicious discretion to set aside judgment. The Defendant's claim that its witness's wife was ill was unsupported by any evidence and contradicted by the court record, which showed Counsel sought adjournment without mention of illness. The record revealed numerous prior adjournments demonstrating deliberate delay to obstruct conclusion of the matter, especially as the application came over a year after judgment and after execution commenced.

p. 2
02

Joinder of a party after conclusion of the suit

Holding

The Proposed Interested Parties were not enjoined; the application was dismissed

Reasoning

Under Order 1 Rule 10(2), an applicant must show its presence is necessary for effectual adjudication and that it has a stake in the proceedings. The Proposed Interested Party was not a party to the concluded proceedings, was not mentioned in the judgment, and execution was not sought against it. The Court also could not discern any conflict between the earlier Wakf judgment and its own determination.

p. 3

Legal principles established

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  • The discretion to set aside a judgment must be exercised judiciously and not to assist a party who deliberately sought to obstruct or delay the course of justice
  • An applicant for joinder must show that its presence is necessary for the effectual and complete adjudication of the issues and that it stands to be adversely affected by the judgment

Court orders

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  1. 1.The application dated 12th February 2019 is dismissed
  2. 2.The Proposed Interested Party's application dated 25th February 2019 is dismissed
  3. 3.The Plaintiffs shall have the costs of the two applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Mazrui Lands Trust (Repeal) Act1989

Cases cited (1)

  • Shah –vs- Mbogo
    (1968) EA 93
Jurisdiction invoked
Inherent jurisdiction and Civil Procedure Rules (Order 10 Rule 11 and Order 1 Rule 10(2)) over suits pending before the Court

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, "Samuel Charo Kitsao & 34 others v Mombasa Cement Limited [2020] KEELC 2408 (KLR)", Case Analysis (2020). Not stated in the judgment extract (consolidated suits filed 13th May 2010 and 14th February 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2408/eng@2020-05-27

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