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ELCDismissedEnvironment & Land Case 333 of 2013· [2023] KEELC 17000 (KLR)

Kibiego v Gichuru & another

Environment and Land Court
25 April 2023
JOJ.M. Onyango
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to reopen a 10-year-old land case, ruling that unexplained delay and undisclosed evidence cannot rescue a closed case.

What this practically means

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Executive summary

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By a chamber summons dated December 6, 2021, the 2nd defendant, Meshack Rono, sought to set aside the orders issued on October 27, 2021, leave to reopen his case so that his witness could testify and produce documents, and suspension of the highlighting of written submissions fixed for December 16, 2021. He argued his case had been closed without his only witness tendering evidence, invoking Article 50 fair-hearing rights, Article 159(2)(d), sections 1A and 1B of the Civil Procedure Act, and authorities on the discretion to reopen cases. The plaintiff opposed, contending the applicant's list of witnesses contained only himself, that he relied on documents produced by the 1st defendant, that the applicant had delayed the hearing, and that litigation must come to an end. The 1st defendant did not oppose. The court first found the application competent: a notice of intention to act in person had been filed on December 10, 2021, the only lapse being non-service on the plaintiff, so the firm of Rotuk & Co Advocates rightly filed a notice of appointment. On the merits, applying Shah v Mbogo and Samwel Kiti Lewa v Housing Finance Co of Kenya Ltd, the court held the discretion to set aside orders and reopen cases must be exercised judiciously, should not fill gaps in evidence, and is defeated by inordinate unexplained delay. The applicant had not disclosed the evidence he intended to adduce, and reopening a ten-year-old case after he had closed his case would prejudice the plaintiff and offend the overriding objective. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Competency of the application for non-compliance with Order 9 rule 8(1)

Holding

Application competent; notice of intention to act in person was on record, only service on the plaintiff was lacking, and the new firm rightly filed a notice of appointment

Reasoning

The court perused the record and found the notice of intention to act in person filed December 10, 2021. The only lapse was non-service on the plaintiff. Since the applicant had properly acted in person, Rotuk & Co Advocates correctly filed a notice of appointment rather than a notice of change of advocates.

p. 2
02

Whether to set aside the October 27, 2021 orders and reopen the 2nd defendant's case

Holding

Refused; discretion not exercised in applicant's favour

Reasoning

The applicant claimed his advocate failed to call a witness, yet his list of witnesses contained only himself and he did not disclose the intended evidence. Allowing reopening at that late stage, after a 10-year-old case, could fill gaps in evidence and would prejudice the plaintiff and defeat the overriding objective of just, expeditious and proportionate resolution of disputes.

p. 4

Legal principles established

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  • The court's discretion to set aside its orders must be exercised judiciously to avoid injustice, not to assist a party who deliberately obstructed or delayed the cause of justice
  • Re-opening of a case should not be allowed where it is intended to fill gaps in evidence or where defeated by inordinate and unexplained delay

Court orders

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  1. 1.Application dated December 6, 2021 dismissed with costs to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 9 rule 8(1)
  • Civil Procedure Rules, 2010Order 3 rule 2
  • Civil Procedure Rules, 2010Order 11
  • Environment and Land Court ActOverriding objective

Cases cited (5)

  • Wachira Karani v Bildad Wachira
    (2016) eKLR

    Fundamental duty of the court to allow parties a proper opportunity to put their cases on the merits

  • Simba Telecom v Karuhanga & another
    (2014) UGHC 98

    Court retains discretion to allow re-opening of a case, exercised judiciously without embarrassing or prejudicing the opposite party

  • Kihumba v Gladys Wanjiru Migwi & another
    (2006) eKLR

    Even in land matters, litigation must come to an end

  • Shah v Mbogo
    1967 EA 93

    Discretion to set aside orders is to avoid injustice, not to assist deliberate obstruction or delay

  • Samwel Kiti Lewa v Housing Finance Co of Kenya Ltd & another
    (2015) eKLR

    Re-opening should not fill gaps in evidence and is defeated by inordinate unexplained delay

Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Act and Rules (inherent discretion to set aside orders)

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, "Kibiego v Gichuru & another", Case Analysis (2023). Environment & Land Case 333 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17000/eng@2023-04-25

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