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ELCPartially AllowedKisumu ELC Suit (Number not stated in judgment); 1st Defendant's Notice of Motion dated December 19, 2022· [2023] KEELC 802 (KLR)

Sutton Holdings Limited v Nyamunga & 2 others (Environment and Land Case Civil Suit 22 of 2018) [2023] KEELC 802 (KLR)

Environment and Land Court
16 February 2023
2,584 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a defendant to file his evidence late, ruling that a fair hearing outweighs missed deadlines, but he must pay Kshs 30,000 in costs.

What this practically means

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Executive summary

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This is a ruling on the 1st Defendant's Notice of Motion dated December 19, 2022 in a land dispute over Title No Kisumu/Korando/1973, in which the Plaintiff seeks a declaration of ownership and vacant possession. The 1st Defendant sought leave to file a further list of documents and witness statements after the Plaintiff had closed its case on November 7, 2022. He wished to file the record of appeal and judgment in Kisumu Criminal Appeal No 53 of 2014, Luke Ochieng Ogada v Republic, and to call George Kwanyah Odidi, from whom he claimed to have purchased the suit property. The Plaintiff opposed, contending the 1st Defendant never filed any list of documents despite an extension granted by the Deputy Registrar, knew of the parallel register as early as August 2019, and was merely seeking to fill gaps in his case after hearing the Plaintiff's evidence. The court found the 1st Defendant's excuses neither reasonable nor convincing but held that the proposed evidence would assist the court in arriving at a just decision in a convoluted suit, and that refusing the application would leave him unable to defend himself. No prejudice compensable only in costs would befall the Plaintiff, who could reopen its case and recall witnesses. The application was allowed: leave was granted to the 1st Defendant to file documents and witness statements within 7 days; the Plaintiff was granted leave to reopen its case, recall witnesses and file further documents within 21 days of service; and the 1st Defendant was ordered to pay thrown away costs and costs of the application assessed at Kshs 30,000/-. The ruling was delivered by S Okong'o J on February 16, 2023 at Kisumu.

Key legal issues

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01

Whether sufficient cause was shown for the late filing of documents and witness statements

Holding

The excuses proffered were neither reasonable nor convincing, but the discretion was nonetheless exercised in favour of allowing the application in the interests of justice.

Reasoning

The court found the 1st Defendant had failed to file documents even after an extension by the Deputy Registrar, and agreed with the Plaintiff that the excuses were unconvincing. However, the proposed evidence of George Kwanyah Odidi and the record of appeal in the criminal case would assist the court to reach a just decision in a convoluted suit, and refusing the application would leave the 1st Defendant unable to defend himself.

p. 3
02

Whether the Plaintiff would suffer irreparable prejudice

Holding

No prejudice that cannot be compensated in costs; the Plaintiff may reopen its case and recall witnesses.

Reasoning

The fraud conviction of Luke Ochieng Ogada had been pleaded and was not new to the Plaintiff, so the record of appeal could not take it by surprise. Nor was the claim of purchase from George Kwanyah Odidi new. The Plaintiff, though its case was closed, could apply to reopen and call further evidence, with thrown away costs awarded.

p. 4

Legal principles established

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  • A court's discretionary power must be exercised judiciously, upon legal principles and according to the circumstances of each case, to do real and substantial justice.
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, without unexplained gaps.
  • Errors or defaults by a party should generally be put right by payment of costs rather than by depriving the party of a hearing on the merits.
  • The right to a hearing is a well-protected constitutional right and the cornerstone of the rule of law, requiring proportionality even where courts have power to dismiss suits.

Court orders

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  1. 1.The 1st Defendant's application dated December 19, 2022 is allowed
  2. 2.The 1st Defendant is granted leave to file a list of documents and witness statements within 7 days
  3. 3.The Plaintiff is granted leave to reopen its case and to recall its witness to give further evidence if necessary
  4. 4.The Plaintiff is granted leave to file a further list of documents and to call additional witnesses if necessary, to be filed within 21 days of service of the 1st Defendant's documents
  5. 5.The 1st Defendant shall pay to the Plaintiff thrown away costs and the costs of the application assessed at Kshs 30,000/- payable forthwith and before the next hearing date

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 50 Rule 1
  • Civil Procedure RulesOrder 11
  • Constitution of Kenya, 2010Articles 25 and 159

Cases cited (5)

  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2018] eKLR
  • Attorney General v Law Society of Kenya & another
    [2017] eKLR
  • Phillip Chemwolo & Another v Augustine Kubede
    [1982-88] KAR 103
  • Richard Nchapi Leiyangu v IEBC & 2 others
    Civil Appeal No 18 of 2013
  • Luke Ochieng Ogada v Republic
    Kisumu Criminal Appeal No 53 of 2014
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power), Order 50 Rule 1 of the Civil Procedure Rules, Articles 25 and 159 of the Constitution of Kenya, 2010

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, "Sutton Holdings Limited v Nyamunga & 2 others (Environment and Land Case Civil Suit 22 of 2018) [2023] KEELC 802 (KLR)", Case Analysis (2023). Kisumu ELC Suit (Number not stated in judgment); 1st Defendant's Notice of Motion dated December 19, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/802/eng@2023-02-16

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