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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 3060 (KLR)

Ng’ang’a & 3 others v Maina; Daniel Kamau Maina & others t/a Cactus Self Help Group (Interested Party) (Environment & Land Case 309 of 2012) [2022] KEELC 3060 (KLR)

Environment and Land Court
26 May 2022
LOL. A. Omollo
3,009 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court allowed land plaintiffs to reopen their case and produce a key 2003 memorandum of understanding, ruling that justice outweighs procedural strictness when no one is prejudiced.

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 Nakuru (L. A. Omollo, J) on the plaintiffs' notice of motion dated February 28, 2022, seeking leave to reopen their case limited to production of a memorandum of understanding dated November 1, 2003 (marked MFI P7). The underlying suit, filed by plaint dated June 29, 2011, sought an injunction and an order compelling the defendant to subdivide Land Reference Number 1556/48 (Title Number IR 39720) in Naivasha Town into four parcels and transfer them to the plaintiffs, based on the memorandum of understanding. The defendant denied the trust and, by counterclaim, sought declarations that the memorandum was void and that he was absolute owner. At the hearing on February 23, 2022, the plaintiffs' witness, Advocate PK Njuguna, arrived late due to a car breakdown after the plaintiffs' case had been closed; the court declined an adjournment. The defendant and interested parties closed their cases, and the plaintiffs then orally sought to reopen, leading to this application. The interested parties did not oppose. The court applied the principles in Simba Telecom v Karuhanga, adopting Smith v New South Wales: reopening is discretionary and must be exercised judiciously, without prejudice to the opposite party, not to fill gaps, and not after inordinate unexplained delay. Distinguishing the authorities cited by the defendant, the court found the memorandum central to the dispute, referred to by all witnesses, and that any prejudice would be cured by cross-examination; the application was filed without delay. The application was allowed with no order as to costs.

Key legal issues

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01

Whether the plaintiffs should be granted leave to re-open their case to produce the memorandum of understanding (MFI P7)

Holding

Application allowed; the memorandum is central to the dispute, no prejudice will be occasioned, and there was no inordinate delay in making the application

Reasoning

The court adopted the principles in Simba Telecom v Karuhanga: reopening is discretionary, must be exercised judiciously, must not embarrass or prejudice the opposite party, must not fill gaps in evidence, and must not be marred by inordinate and unexplained delay. The memorandum of understanding was referred to by witnesses on all sides and is sought to be declared void in the counterclaim. Cross-examination would cure any prejudice, and the application was filed within days of closure of the plaintiffs' case.

p. 7
02

Who shall bear the costs of the application

Holding

No order as to costs, departing from the general rule that costs follow the event

Reasoning

Although the general rule under section 27 of the Civil Procedure Act is that costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise, the court in its discretion made no order as to costs on this interlocutory application.

p. 7

Legal principles established

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  • The court retains discretion to allow re-opening of a case, to be exercised judiciously, without embarrassing or prejudicing the opposite party, not to fill gaps in evidence, and defeated by inordinate and unexplained delay

Court orders

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  1. 1.Leave granted to the plaintiffs/applicants to reopen their case limited to production of the memorandum of understanding (MFI P7(b))
  2. 2.The other parties to be given opportunity to cross-examine the maker of the memorandum of understanding
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B(a)
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure Act (cap 21)section 27
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 51 rule 10(2)
  • Civil Procedure RulesOrder 8
  • Civil Procedure RulesOrder 18 rule 10
  • Evidence Actsection 146(4)

Cases cited (5)

  • Susan Wavinya Mutavi Vs Isaac Njoroge & Another
    [2020] eKLR
  • Johana Kipkemei Too Vs Hellen Tum
    [2014] eKLR
  • Emily Cherono Kiombe Vs Jacob Kamoni Kari
    [2018] eKLR
  • Simba Telecom Vs Karuhanga & Anor
    (2014) UGHC 98
  • Smith Versus New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
Jurisdiction invoked
Sections 1A, 1B(a), 3A and 63(e) of the Civil Procedure Act and Order 51 rule 1, rule 10(2) and Order 8 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ng’ang’a & 3 others v Maina; Daniel Kamau Maina & others t/a Cactus Self Help Group (Interested Party) (Environment & Land Case 309 of 2012) [2022] KEELC 3060 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3060/eng@2022-05-26

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