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ELCPartially AllowedEnvironment & Land Case 374 of 2016· [2022] KEELC 2747 (KLR)

Ziro v Mutei & another (Environment & Land Case 374 of 2016) [2022] KEELC 2747 (KLR)

Environment and Land Court
12 July 2022
4,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd Defendants moved the Environment and Land Court at Mombasa by Notice of Motion dated November 29, 2021 seeking stay of proceedings, setting aside of the proceedings of November 8, 2021, and re-opening of the suit for cross-examination of the Plaintiff and defence hearing. The application arose after the Defendants' then advocate, Mr. Kenga, orally sought leave on the hearing date of November 8, 2021 to file an application to cease acting, claiming lack of instructions; the court nonetheless proceeded to hear the Plaintiff's case ex parte and closed the defence case. The Defendants argued they would be condemned unheard, invoking Articles 50 and 159 of the Constitution. The Plaintiff opposed, contending the hearing date was fixed by consent, that the advocate was properly on record, and that the application was an afterthought designed to frustrate an old suit filed in 2016. The court framed four issues and held that an advocate is deemed duly instructed upon taking a brief, that the last-minute conduct did not warrant an adjournment, and that the advocate - not the clients' lack of instructions - was to blame. Applying the principles in Samuel Kiti Lewa and the Ugandan and Australian authorities, the court held the discretion to re-open must be exercised judiciously without embarrassing or prejudicing the opposite party. Balancing the right to a fair trial with the overriding objective, the court conditionally allowed the application only to the extent of permitting the Defendant to recall PW-1 for cross-examination and re-examination and thereafter the defence hearing, while directing that the proceedings of November 8, 2021 remain intact. Both parties were given 14 days to file and exchange further documents, the matter was to be heard within 180 days, and the Defendants were ordered to pay the costs of the application plus Kshs. 25,000.00 in thrown away costs, with automatic dismissal of the application upon non-compliance.

Key legal issues

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01

Whether the oral application to cease acting on the hearing date justified an adjournment

Holding

No. The advocate should have formally moved the court under Order 9 Rule 13 with notice rather than waiting until the hearing date; the advocate is to blame and the conduct did not warrant an adjournment.

Reasoning

The court relied on Article 50(2)(g) and Order 9 Rule 13, noting the advocate was deemed on record until formally ceasing to act. The hearing date had been fixed by consent after the transfer of the previous judge. The advocate was indulged and rescheduled within the day but still declined to proceed. Since the Plaintiff had travelled from Kericho, the last-minute refusal was unjustified and not excusable mistake.

p. 6
02

Whether the ex parte proceedings of November 8, 2021 should be set aside and the case re-opened

Holding

The case was conditionally re-opened only to the extent of permitting cross-examination and re-examination of PW-1, but the proceedings themselves remain intact.

Reasoning

The court accepted the principles in Samuel Kiti Lewa that re-opening is discretionary, must be exercised judiciously, and should not embarrass or prejudice the opposite party or fill gaps in evidence. Balancing the Defendants' right to a fair trial under Articles 50 and 159 against the Plaintiff's right to expeditious determination, and as an equitable remedy requiring clean hands, the court conditionally allowed recall of PW-1 rather than setting aside the proceedings wholesale.

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Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the Defendants to bear the costs of the application plus thrown away costs.

Reasoning

The court held that costs are discretionary and follow the event. Although the application was partially allowed, the Defendants' advocate's conduct caused the Plaintiff, who travelled from Kericho, inconvenience. The Defendants were therefore ordered to pay the costs of the application and Kshs. 25,000.00 in thrown away costs before the next mention date.

p. 8

Legal principles established

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  • An advocate is deemed to be duly and fully instructed upon taking a brief from his client, and a last-minute claim of lack of instructions on a hearing date does not warrant an adjournment.
  • The discretion to re-open a case must be exercised judiciously and must not embarrass or prejudice the opposite party, nor be allowed to fill gaps in evidence or follow inordinate and unexplained delay.

Court orders

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  1. 1.The Notice of Motion dated November 29, 2021 be and is hereby conditionally allowed only to the extent of permitting the Defendant to recall the Plaintiff Witness (PW-1) who testified on November 8, 2021 ex parte under Order 18 Rule 10 of the Civil Procedure Rules, 2020 exclusively for cross-examination and re-examination and thereafter for the Defence hearing and further directions.
  2. 2.The proceedings of the Court taken and recorded on November 8, 2021 remain intact and not to be interfered with at all by any party.
  3. 3.Both the Plaintiff and the 1st and 2nd Defendants granted leave within the next 14 days to file and exchange any further documents and statements and/or summon any witness they wish.
  4. 4.The matter to be fixed for hearing and final determination within the next 180 days, with a mention date on September 22, 2022 for compliance and fixing a hearing date.
  5. 5.Costs of the application to be borne by the Defendant/Applicant, plus Kenya Shillings Twenty Five Thousand (Kshs. 25,000.00) payable to the Plaintiff as thrown away costs before the next mention date.
  6. 6.Failure to comply with any of these conditions shall cause the Notice of Motion dated November 29, 2021 to stand automatically dismissed.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50, 50(2)(g), 159
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A, 63(e), 27(1)
  • Civil Procedure Rules, 2010Order 12 Rule 7, Order 18 Rule 10, Order 51 Rule 1
  • Civil Procedure Rules, 2020Order 9 Rules 13, 13(1)(a), (b) and (c); Order 18 Rule 10
  • Environment & Land Court Act, No. 19 of 2011Sections 3, 13, 19
  • Land Registration Act, No. 3 of 2012Section 101
  • Land Act, No. 6 of 2012Section 150

Cases cited (9)

  • Raindrops Limited v County Government of Kilifi
    [2020] eKLR
  • Techbiz Limited v Royal Services Limited
    [2021] eKLR
  • Ngugi Kagia v Buci Rotuba Limited
    [2019] eKLR
  • Shah v Mbogo & Another
    [1967] EA 1116
  • Samuel Kibutha Kamau v Catherine Chao Nyange
    [2021] eKLR
  • Mbithuka Titus v Jackline Mutindi
    [2020] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Simba Telecom v Karuhanga & Anor
    [2014] UGHC 98
  • Smith v New South Wales
    [1992] HCA 36; [1992] 176 CLR 256
Jurisdiction invoked
Articles 50, 159(1) and (2) of the Constitution of Kenya, 2010; Sections 3, 13 and 19 of the Environment & Land Court Act, No. 19 of 2011; Section 101 of the Land Registration Act; Section 150 of the Land Act; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, Cap. 21; Orders 9, 12, 18 and 51 of the Civil Procedure Rules, 2010/2020

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ziro v Mutei & another (Environment & Land Case 374 of 2016) [2022] KEELC 2747 (KLR)", Case Analysis (2022). Environment & Land Case 374 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2747/eng@2022-07-12

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