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ELCAllowedPetition number (one of Petition No. 8/19, 9/19 or 12/19 as referenced; exact number not stated in the judgment)· [2021] KEELC 3104 (KLR)

Muindi Kimeu & 3,285 others v Kenya Pipeline Company Ltd & another [2021] KEELC 3104 (KLR)

Environment and Land Court
3 June 2021
CMC. G. Mbogo
2,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled it can change earlier hearing directions and ordered a damages claim proceed by oral evidence for fairness.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (Mbogo CG, J) determines a Notice of Motion dated 18th March 2021 by the 1st Respondent seeking, among other things, review and setting aside of the court's directions of 4th February 2021 on the hearing of the petition, enlargement of time to file its response, and an order that the matter proceed by viva voce evidence. At the inter partes hearing on 29th April 2021 the parties recorded a consent enlarging time for filing responses and agreeing to oral submissions on whether the matter should proceed by viva voce evidence or written submissions. The 1st Respondent argued that the makers of the medical and Environmental Assessment Reports should be cross-examined under Section 35 of the Evidence Act, and that some Petitioners should testify on special and general damages. The Petitioners opposed, relying on Rule 20 of the Mutunga Rules and the authority of Republic v Disciplinary and Ethics Committee, submitting that parties cannot alter court directions and that the application was premature and intended to delay. Holding that the sole issue was whether the court could review its 4th February 2021 directions, the court found Rule 20(3) gives it discretion to direct oral hearing and that procedural directions should not override fair-trial considerations. Distinguishing the Republic v Disciplinary and Ethics Committee authority and fortified by Ahad v CJE, the court allowed the application, issued prayers 3 and 4, directed that part of the petition be heard by oral evidence, and ordered costs in the cause.

Key legal issues

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01

Whether the court can review its own directions on the mode of disposal of a petition

Holding

Yes - the court has discretion under Rule 20(3) to direct, upon application or on its own motion, that a petition or part thereof be heard by oral evidence, and earlier directions can be varied.

Reasoning

Rule 20 permits disposal by affidavits, written submissions or oral evidence, but Rule 20(3) allows the court, on application or its own motion, to direct oral hearing. Directions are procedural and cannot fetter the court's discretion for the life of the case. Fair-trial considerations, including cross-examination of expert makers of medical reports, prevailed over the earlier directions.

p. 3
02

Whether oral evidence is necessary for a fair determination of the petition

Holding

Yes - the doctors who prepared the medical reports and some Petitioners should be cross-examined so the court can arrive at a fair and just determination on compensation.

Reasoning

The Petitioners seek damages for injuries and loss of amenities and rely on medical reports; the makers of those reports had not sworn affidavits. Cross-examination of the doctors and some Petitioners, with rights of re-examination and cross-examination reserved to each side, serves the interest of justice without prejudicing the Petitioners.

p. 3

Legal principles established

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  • Directions on the mode of disposal of a petition are procedural and may be varied in the interest of a fair trial; the court retains discretion under Rule 20(3) to direct that a petition be heard by oral evidence.
  • Procedural directions should not override considerations of a fair trial.

Court orders

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  1. 1.Prayers 3 and 4 of the Notice of Motion dated 18th March 2021 issued
  2. 2.The part of the petition on damages shall be heard by oral (viva voce) evidence
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 20 (and Rule 20(3))
  • Evidence ActSection 35
  • Civil Procedure Act/Rulesreview of orders (referred to generally as 'the civil procedure')

Cases cited (3)

  • Republic -Vs- Disciplinary and Ethics Committee & Another, Donald Oyatsi (Ex-parte) AGK (on behalf of WK Minor) Interested Party
    [2020] eKLR
  • Robert Ngande Kathathi -Vs- Francis Kivuva Kitonde
    [2020] eKLR
  • Ahad -Vs- CJE
    [2019] eKLR
Jurisdiction invoked
Article 22 and Article 159 of the Constitution of Kenya 2010, and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Rule 20)

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, "Muindi Kimeu & 3,285 others v Kenya Pipeline Company Ltd & another [2021] KEELC 3104 (KLR)", Case Analysis (2021). Petition number (one of Petition No. 8/19, 9/19 or 12/19 as referenced; exact number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3104/eng@2021-06-03

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