Reynolds Construction Company (Nigeria Limited) v M’Mboroki (Environment and Land Miscellaneous Application E036 of 2021) [2022] KEELC 2447 (KLR)
The bottom line
#The Environment and Land Court dismissed a request to pause a land damage case, ruling the applicant's long, unexplained delay disqualified it from more time.
What this practically means
#Executive summary
#Key legal issues
#Inordinate delay and its explanation
The delay between December 16, 2020 and August 3, 2021 was inordinate and unexplained; service by registered post of the mention notice contradicted the claim of ignorance of the dismissal.
The applicant did not deny the chronology of non-attendance before the trial court. It was served with a mention notice as early as March 15, 2021 through its law firm's address. Having been represented when the ruling date was fixed by consent, the applicant could not claim lack of notice, nor blame the court for its failure to attend and follow up. Extension of time being equitable, the burden lay on the applicant to justify the discretion, which it failed to do.
Alleged infringement of the right to fair hearing
No infringement: the trial court gave the applicant an opportunity to be heard and adequate time to file submissions and fix the ruling date.
The court held that fair hearing entails adherence to procedure and is subject to opponents' rights. The trial court accorded the applicant all that was required; its own failure to attend the ruling and follow up the outcome could not be laid at the trial court's door.
Stay of proceedings / nugatory appeal
No sufficient cause shown for stay; the claim was based on negligent excavation, not a boundary dispute, so the intended appeal on jurisdiction was weak and the applicant retained its right to be heard on merits.
The draft memorandum of appeal raised issues properly addressable at trial. The plaint was founded on negligent excavation of soil during construction of the Kionyo–Chogoria road, not a boundary dispute, so Section 18 of the Land Registration Act did not oust the trial court's jurisdiction. The applicant's defence admitted the damage, attributing it to an act of God. Stay of proceedings requires sufficient cause, which was absent.
Striking out the suit for want of jurisdiction
Rejected; the suit was not a boundary dispute for the Land Registrar.
The claim was in negligence for excavation and dumping of soil causing damage to the respondent's land, not a boundary or occupation dispute. The issues raised in the earlier application were matters of fact and law requiring ventilation by viva voce evidence, so striking out was unwarranted.
Legal principles established
#- Extension of time is not a right of a party; being an equitable remedy it is available only to a deserving party who lays a basis for the exercise of discretion in its favour.
- An arguable appeal need not succeed so long as it raises a bona fide issue for determination by the court.
- The right to fair hearing includes adherence to rules of procedure and court processes and is subject to the rights of one's opponent.
- A party who fails to attend a ruling and follow up its outcome within a reasonable time cannot blame the trial court for its own omissions.
Court orders
#- 1.The application is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction of the High Court / Environment and Land Court over interlocutory applications, including Order 42 Rule 6 Civil Procedure Rules and sections 79A and 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reynolds Construction Company (Nigeria Limited) v M’Mboroki (Environment and Land Miscellaneous Application E036 of 2021) [2022] KEELC 2447 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2447/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.