Ibau & 73 others v Lang'ata Development Company Limited & another (Environment & Land Case 129 of 2019) [2022] KEELC 3781 (KLR)
The bottom line
#A Kenyan court refused to reopen a land trial after a party missed the hearing, ruling that attendance is the client's responsibility, not just the lawyer's.
What this practically means
#Executive summary
#Key legal issues
#Recall of the plaintiff for cross-examination after closure of the plaintiff's case
The prayer was rejected because the 2nd defendant offered no justification for its absence on the hearing date
The court observed that the hearing date had been given almost a year earlier, the parties are responsible for attendance rather than their advocates, and the record showed the 2nd defendant and his advocate gave no word of their whereabouts. The advocate's claim of being stuck in traffic could not be gauged by the court, and no reason was advanced for the party's own absence.
Leave to introduce four additional documents after pretrial and closure of the plaintiff's case
Leave refused; the application was a late attempt to answer the plaintiff's testimony and would prejudice the plaintiff
The court applied the Supreme Court's guidance that admission of further evidence is discretionary and must consider the extent of the new material and prejudice. The 2nd defendant had never indicated it was awaiting documents, had filed its trial bundle in 2020, and the new documents could not be termed small. Adopting the reasoning in Smith v New South Wales, the court found the application an afterthought lodged in answer to the plaintiff's testimony.
Application of the overriding objective under sections 1A and 1B of the Civil Procedure Act
The court is statutorily bound to consider procedural fairness and efficiency of justice in exercising its discretion
Sections 1A and 1B impose on parties and advocates a duty to assist the court to further the just, expeditious, proportionate and affordable resolution of disputes and to comply with court directions. The court held that procedural justice concerns fairness, consistency and transparency of process, while efficiency requires justice at reasonable cost and within reasonable time, both weighed against the late application.
Legal principles established
#- A case belongs to the parties and not their advocates or advocates' clerks; absence of a party on a scheduled hearing date without justification cannot ground re-opening of proceedings
- Leave to introduce additional evidence is discretionary, not a right, and the court considers the nature, context and extent of the new material and prejudice to the other party
Court orders
#- 1.Dismissal of the Notice of Motion dated February 25, 2022
- 2.Costs of the application to the plaintiff and 1st defendant
- Jurisdiction invoked
- Inherent case-management discretion under sections 1A and 1B of the Civil Procedure Act (overriding objective)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibau & 73 others v Lang'ata Development Company Limited & another (Environment & Land Case 129 of 2019) [2022] KEELC 3781 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3781/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.