Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract (Notice of Motion dated 26th August 2019)· [2020] KEELC 2655 (KLR)

John Karuga Wahinya v Attorney General & 4 others [2020] KEELC 2655 (KLR)

Environment and Land Court
5 May 2020
LKL. Komingoi
965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, John Karuga Wahinya, moved the court by notice of motion dated 26th August 2019 under sections 1A, 1B, 3A, 23, 6 and 3e of the Civil Procedure Act and Order 51 Rules 1 and 10(2) of the Civil Procedure Rules. He sought orders to re-open his case to enable him to call the Land Registrar who executed the certificates of title for LR No. Ruiru/Ruiru East Block 3/1643 and 3/1647 together with the green card, or alternatively to have a document examiner certify the validity of the two signatures on those documents. The application was opposed through a replying affidavit sworn by counsel for the 4th and 5th defendants and was canvassed by oral submissions on 10th December 2019. The plaintiff relied on the court's inherent power to do justice, the anti-technicality provisions of Order 51 rule 10(2) and Article 159(2)(d) of the Constitution. Komingoi J held that the application came too late in the day, that the plaintiff identified no particular Land Registrar and gave no reasonable explanation for seeking to call witnesses who had not previously testified. Distinguishing Joseph Ndungu Kamau v John Njihia, and applying Samuel Kiti Lewa v Housing Finance Corporation, Simba Telecom v Karuhanga and Smith v New South Wales, the court held that the discretion to re-open must be exercised judiciously, must not embarrass or prejudice the opposite party, and cannot be used to fill gaps in evidence or cure inordinate, unexplained delay. Finding the defendants would be prejudiced, the court dismissed the application with costs to the defendants.

Key legal issues

#
01

Whether the court should exercise its discretion to re-open the plaintiff's case and permit further evidence

Holding

The application was dismissed; the delay was unexplained and the defendants would be prejudiced

Reasoning

The plaintiff sought to call witnesses who had not testified before without any reasonable explanation. The court distinguished Joseph Ndungu Kamau v John Njihia, where an adjournment had earlier been sought and the evidence was an existing court file. Applying Simba Telecom and Smith v New South Wales as adopted by Kasango J in Samuel Kiti Lewa, the court held that re-opening cannot be used to fill gaps in evidence and must not prejudice the opposite party. No justifiable reasons warranted the discretion being exercised for the plaintiff.

Legal principles established

#
  • The discretion to re-open a case must be exercised judiciously and will not be allowed where it would embarrass or prejudice the opposite party, is meant to fill gaps in evidence, or is defeated by inordinate and unexplained delay

Court orders

#
  1. 1.The notice of motion dated 26th August 2019 is dismissed
  2. 2.Costs of the application to the defendants/respondents

Authorities

#

Legislation

  • Civil Procedure Act Cap 21Sections 1A, 1B(a) and (b), 3A, 23, 6, 3e
  • Civil Procedure RulesOrder 51 Rule 1 and Rule 10(2)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • Joseph Ndungu Kamau vs John Njihia
    [2017] eKLR
  • Samuel Kiti Lewa vs Housing Finance Corporation of Kenya
    [2015] eKLR
  • Simba Telecom vs Karuhanga & another
    [2014] UGHC 98
  • Smith vs New South Wales
    [1992] HCA 36; [1992] 176 CLR 256
Jurisdiction invoked
Sections 1A, 1B(a) and (b), 3A, 23, 6, 3e of the Civil Procedure Act Cap 21 and Order 51 Rule 1 and Rule 10(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Karuga Wahinya v Attorney General & 4 others [2020] KEELC 2655 (KLR)", Case Analysis (2020). Not stated in the extract (Notice of Motion dated 26th August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2655/eng@2020-05-05

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