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ELCDismissedRuling on application dated 5th October, 2020 in appeal from MELC No. 59 of 2014· [2021] KEELC 4542 (KLR)

Wayua Waita v James Ngui Ndambuki [2021] KEELC 4542 (KLR)

Environment and Land Court of Kenya
29 January 2021
2,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause land proceedings where a party caused 13 months of delays with shifting excuses and no medical proof.

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 Makueni on an application dated 5th October 2020 by the Appellant, Wayua Waita, seeking a stay of proceedings in MELC No. 59 of 2014 pending the hearing of her appeal. The application arose after the trial magistrate on 30th September 2020 refused an adjournment sought on grounds of the Appellant's illness, closed the defence case, and fixed the matter for submissions. The Appellant argued that the refusal denied her a fair hearing under Articles 50 and 25(c) of the Constitution, relying on authorities on adjournments including H.K. Shah v Osman Allo, Japheth Pasi Kilonga v Mombasa Autocare and Lawrence Muturi Mburu v Dalago Tours. The Respondent opposed, contending the Appellant's delay of 13 months through repeated adjournments was inordinate and inexcusable, that she had failed to comply with an order of 11th September 2019 to effect substitution within 30 days after claiming senility, and that equity does not aid the indolent litigant. He relied on Professor Mwangi S. Kaimenyi v Attorney General and National Bank of Kenya v Anaj Warehousing. The court held the trial magistrate could not be faulted: the Appellant was approbating and reprobating by claiming senility then sickness, produced no medical evidence of unfitness, and her conduct showed deliberate delay. It further found the H.K. Shah adjournment principles were not satisfied and, additionally, that the appeal was incompetent for failure to file a copy of the order. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial court erred in refusing the adjournment and closing the appellant's case

Holding

The trial magistrate cannot be faulted; the appellant had to justify abandoning substitution and gave inconsistent positions, claiming senility then sickness

Reasoning

The appellant had told the trial court she had gone senile, obtained leave to substitute, but never effected substitution, then claimed illness on the hearing date fixed by consent. There was no medical evidence of unfitness to testify. The court held the appellant was approbating and reprobating, and the discretion to refuse adjournment was properly exercised judicially.

p. 3
02

Whether stay of proceedings pending appeal should issue

Holding

The application for stay was dismissed; no adequate reasons for adjournment or absence of prejudice were demonstrated

Reasoning

Applying the adjournment principles in H.K. Shah v Osman Allo, the court found no adequate reasons for the adjournment, that the Respondent had already closed his case and would be prejudiced by further delay after 13 months, and that the appeal itself was incompetent because no copy of the order or certified copy had been filed.

p. 3
03

Whether the delay was inordinate and inexcusable

Holding

The 13-month delay occasioned by repeated adjournments and failure to substitute was inordinate and inexcusable

Reasoning

The Respondent closed his case on 7th August 2019; adjournments followed on 11th September 2019 (alleged senility) and 30th September (illness), a consent-fixed date. No substitution was effected despite a 30-day court order. Equity does not aid the indolent litigant, and litigation must come to an end.

p. 3

Legal principles established

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  • The elements to be taken into consideration in granting or refusing an adjournment are the adequacy of the reasons given, the prejudice to the other party, and whether that party can be compensated by costs
  • Inordinate delay has no precise measure and depends on the circumstances of each case, the litmus test being delay which leads the court to the inescapable conclusion that it is inordinate and inexcusable

Court orders

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  1. 1.The application dated 5th October 2020 seeking stay of proceedings in MELC No. 59 of 2014 is dismissed
  2. 2.Costs of the application to the Respondent
On appeal from
Magistrates' Court (MELC No. 59 of 2014)
MELC No. 59 of 2014
Jurisdiction invoked
Appellate/applications jurisdiction of the Environment and Land Court over an appeal from the trial magistrate's 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, "Wayua Waita v James Ngui Ndambuki [2021] KEELC 4542 (KLR)", Case Analysis (2021). Ruling on application dated 5th October, 2020 in appeal from MELC No. 59 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4542/eng@2021-01-29

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