Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 41 of 2018· [2023] KEELC 17830 (KLR)

Susan Chetambe Kehar v Busam Capital Limited & 2 others

Environment and Land Court
30 May 2023
MGM.N. Gicheru
965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kajiado court refused to reinstate a landowner's decade-old case because she and her lawyer repeatedly skipped hearings and ignored court directions.

What this practically means

#

Executive summary

#
This ruling by M.N. Gicheru, J of the Environment and Land Court at Kajiado disposed of the plaintiff's Notice of Motion dated December 16, 2022, brought under Order 12 Rule 7, Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The plaintiff sought to set aside the order of November 24, 2022 dismissing her suit for non-attendance, to reinstate it for hearing, to stay judgment scheduled for May 30, 2023 on the third defendant's counterclaim, and to recall a witness for cross-examination. She explained her counsel's absence by a road accident at Kitengela and her own absence on her advocate's advice that attendance was unnecessary. The first and third defendants opposed, deposing that the ten-year-old suit had been delayed by the plaintiff's indolence to the detriment of the third defendant, who holds good title but cannot occupy the property. The court found the motion without merit: the hearing date had been taken by consent on February 16, 2022, more than nine months before the hearing; the application to adduce fresh evidence had been allowed on February 16, 2022 and nothing was pending; and counsel's assertion that the case was coming for directions was untrue. Invoking Article 159(2)(b) of the Constitution and the overriding objective in Sections 1A and 1A(3) of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, the court held that the plaintiff had locked herself out by refusing to participate and dismissed the motion with costs to the defendants.

Key legal issues

#
01

Whether the dismissal order of November 24, 2022 should be set aside

Holding

No - the plaintiff was fixed for hearing by consent, no fresh-evidence application was pending, and her non-attendance was unexplained and dishonest

Reasoning

The hearing date was taken by consent on February 16, 2022, over nine months before the hearing. The application to adduce fresh evidence had been allowed on February 16, 2022, so nothing was pending. Counsel's claim that the case was coming for directions was untrue, and courtesy required notice of any adjournment request.

p. 2
02

Whether the overriding objective and Article 159(2)(b) favour reinstatement

Holding

No - the plaintiff's delay and disobedience of court directions frustrated the other parties and defeated the overriding objective

Reasoning

Article 159(2)(b) requires that justice not be delayed, and Sections 1A and 1A(3) of the Civil Procedure Act and Section 3 of the Environment and Land Court Act impose a duty to participate and comply with directions. The plaintiff's conduct delayed the over-ten-year-old suit to the detriment of the defendants.

p. 2

Legal principles established

#
  • A party to civil proceedings and their advocate are under a duty to assist the court to further the overriding objective by participating in court processes and complying with directions
  • Justice shall not be delayed; a party who locks themselves out by refusing to participate may be denied reinstatement despite the draconian nature of dismissal

Court orders

#
  1. 1.The Notice of Motion dated December 16, 2022 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1A and 1A(3)
  • Environment and Land Court ActSection 3
  • Civil Procedure RulesOrder 12 Rule 7, Order 18 Rule 10, Order 51 Rule 1
Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Act (Order 12 Rule 7, Order 18 Rule 10 and Order 51 Rule 1 Civil Procedure Rules; Section 3A Civil Procedure Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Susan Chetambe Kehar v Busam Capital Limited & 2 others", Case Analysis (2023). Environment & Land Case 41 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17830/eng@2023-05-30

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