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ELCAllowedEnvironment & Land Case 126 of 2013· [2023] KEELC 17036 (KLR)

Kinyanjui v Karumi; Mbuthia & 2 others (Interested Parties)

Environment and Land Court
13 April 2023
635 words in judgment
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The bottom line

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The Environment and Land Court set aside a Ksh 10,000 adjournment costs order after the party proved he had actually served his pleadings by email.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined an application dated February 27, 2023 by the 3rd interested party, Thomas Acahchi Osoro, seeking to set aside or review orders made on February 6, 2023 directing him to pay adjournment costs of Ksh 10,000/- to the plaintiff and the defendants. The application was supported by an affidavit of Julius Ndichu Kihanya Advocate, who deposed that the costs order rested on an erroneous presumption that the 3rd interested party had not served the plaintiff, defendant and 1st interested party with his pleadings, when in fact service had been effected by email on July 24, 2021, October 27, 2021 and October 8, 2022. The court directed that the application be canvassed by written submissions, but none were filed and the application was unopposed. Framing the sole issue as whether the February 6, 2023 order should be set aside, the court held that such relief lies in the court's wide discretion, to be exercised judiciously as stated in Shah v Mbogo (1979) EA 116, and that the applicant must lay a basis for the exercise of that discretion. The annexed evidence (JNK 1-4) confirming service was uncontroverted. Guided by Articles 48, 50 and 159(2)(d) of the Constitution and sections 3, 4 and 13 of the Environment and Land Court Act read with sections 1A, 1B and 3A of the Civil Procedure Act, the court allowed the application in terms of prayer 1, set aside the adjournment costs order, and made no orders as to costs.

Key legal issues

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01

Whether the adjournment costs order of February 6, 2023 should be set aside

Holding

The order was set aside because the 3rd interested party demonstrated, through uncontroverted evidence, that the parties had in fact been served with his pleadings.

Reasoning

The court held that setting aside an order is discretionary and must be exercised judiciously as in Shah v Mbogo. The applicant laid a basis by annexing evidence (JNK 1-4) confirming service by email on July 24, 2021, October 27, 2021 and October 8, 2022. The evidence was uncontroverted and the application unopposed. Guided by Articles 48, 50 and 159(2)(d) and the substantive justice provisions of the ELC Act and Civil Procedure Act, the court allowed prayer 1.

p. 2

Legal principles established

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  • The decision whether to set aside or review an order of the court is within the court's wide discretion, to be exercised judiciously, and a basis for its exercise must be laid by the applicant.

Court orders

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  1. 1.The order directing the payment of adjournment costs of Ksh 10,000/- is set aside
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Environment and Land Court Actsections 3, 4 and 13
  • Civil Procedure Actsections 1A, 1B and 3A

Cases cited (1)

  • Shah v Mbogo
    (1979) EA 116

    The discretion to set aside or review proceedings or orders must be exercised judiciously.

Jurisdiction invoked
Articles 48, 50 and 159(2)(d) of the Constitution; sections 3, 4 and 13 of the Environment and Land Court Act; sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kinyanjui v Karumi; Mbuthia & 2 others (Interested Parties)", Case Analysis (2023). Environment & Land Case 126 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17036/eng@2023-04-13

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