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ELCDismissedEnvironment & Land Case 101 of 2016· [2022] KEELC 13774 (KLR)

Imathiu v M'inoti (Suing in his Capacity as Administrator ad Litem of the Estate of Hellen Karambu M'inoti - Deceased); Mwendwa (Interested Party)

Environment and Land Court
25 October 2022
1,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 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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This ruling of the Environment and Land Court at Meru (CK Nzili J) disposed of an application by the defendant, Peter Kirima Imathiu, dated September 30, 2022, seeking a stay of proceedings, review, variation and setting aside of the court's orders of September 22, 2022, and reopening of the defence so he could be heard on the merits. The suit, an originating summons of July 18, 2016, had a long history. On May 12, 2022 the plaintiff's case was heard and closed after an adjournment was granted on the basis that the defendant was abroad; the defence called one witness and obtained a far-off date of September 22, 2022 to enable the defendant's travel from the United States. On that date further adjournment was sought on the same ground; counsel could not reach her client, and after the court attempted to contact him virtually for over two hours, the defence case was marked closed with directions for written submissions. The court, invoking order 45 and section 80 of the Civil Procedure Act and sections 1A, 1B and 3A, held that the applicant showed no error apparent on the face of the record, no new matter, and no sufficient reason. He had known of his travel since May, gave notice only two weeks before the hearing, and never arranged virtual attendance. Applying Leiyagu v IEBC and other authorities, the court balanced the right to be heard against proportionality, delay and the respondent's entitlement to expeditious determination, and dismissed the application, directing that written submissions be filed as earlier ordered. No order as to costs was stated.

Key legal issues

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01

Whether the orders closing the defence case should be reviewed or set aside

Holding

The application failed; no error apparent on the record, no new matter, and no sufficient reason was shown.

Reasoning

The applicant knew from May 12, 2022 that he would be out of the country when the September 22, 2022 date was taken. He gave notice only two weeks before the hearing, offered no alternative date, and did not arrange virtual attendance despite the court's suggestion. Documentary exhibits could have been produced by DW1 as public documents. The court weighed prejudice to the respondent against delay in a matter pending since 2016.

p. 2
02

Whether the defence should be reopened and the defendant heard on the merits

Holding

Refused; the defendant's right to a fair hearing must be balanced against proportionality, the integrity of the court and expeditious disposal of a 2016 suit.

Reasoning

Relying on Leiyagu v IEBC, the court held that the right to a fair hearing does not license a party to obstruct or delay justice. The court had already granted adjournments, ordered the matter to proceed at noon at counsel's request, and attempted to reach the defendant virtually for over two hours. Endless adjournment at the defendant's convenience would prejudice the respondent's entitlement to expeditious determination.

p. 2

Legal principles established

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  • A party seeking review under order 45 and section 80 must demonstrate new and important matters not within reach with due diligence, an error apparent on the face of the record, or other sufficient reason.
  • A party who foresaw inability to attend court and gave late notice without alternative dates is the author of his own misfortune and cannot compel adjournment or reopening.

Court orders

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  1. 1.The application dated September 30, 2022 is disallowed for lack of merit
  2. 2.Parties to file written submissions as earlier ordered
  3. 3.Mention on the scheduled date

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 48, 50, 159
  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrders 12, 45, 51; Order 11 (compliance directions)
  • Evidence ActSection 146

Cases cited (8)

  • Equity Bank vs West Link MBO Ltd
    Civil Application No 78/2011

    Courts must balance competing rights and interests within the confines of law to meet the ends of justice

  • Richard Ncharpi Leiyagu vs IEBC & 2 others
    (2013) eKLR

    Discretion to set aside orders is not for parties who obstruct or delay justice; fair hearing balanced by proportionality

  • Abduraham Abdi vs Safi Petroleum Products Ltd and 6 others
    (2011) eKLR

    Weighing prejudice to the innocent party against prejudice to the offending party

  • Mbogo Gatuiku vs AG
    HCC 1983 of 1980

    Even a delay of a day or two in filing calls for an explanation

  • Mawji vs Laiji & others
    (1992) eKLR

    Factors for stay of proceedings: caseload pressure, parties' interests, policy on backlog

  • Oboyo Osodo vs Rael Obara Ojuok & 4 others
    (2017) eKLR

    Overriding objective cannot aid a party who contravenes article 159; refusal to reopen without justifiable basis

  • Kiti Lewa vs Housing Finance of Kenya & another
    (2015) eKLR

    Cited alongside refusal to reopen a case for lack of justification

  • Pinnacle Projects Ltd vs Presbyterian Church of East Africa, Ngong' Parish & another
    (2019) eKLR

    Cited alongside refusal to reopen a case for lack of justification

Jurisdiction invoked
Inherent jurisdiction under sections 1A, 1B and 3A of the Civil Procedure Act read with Article 159 of the Constitution and order 45 of the Civil Procedure Rules

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, "Imathiu v M'inoti (Suing in his Capacity as Administrator ad Litem of the Estate of Hellen Karambu M'inoti - Deceased); Mwendwa (Interested Party)", Case Analysis (2022). Environment & Land Case 101 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13774/eng@2022-10-25

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