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ELCDismissedEnvironment & Land Case 228 of 2018· [2023] KEELC 18880 (KLR)

Oludhe & 2 others (All suing as the administrators of the Estate of Jackson Oludhe Aloo-Deceased) v Benken Enterprises Limited & another

Environment and Land Court
13 July 2023
LMLucy N. Mbugua
745 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused a company's late request to adjourn and summon land registry witnesses, closing its defence entirely.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (LN Mbugua, J) dealt with applications by counsel for the 1st and 2nd defendants at the resumption of the hearing of Environment & Land Case 228 of 2018. The 1st defendant sought an adjournment to call its witness, Isaiah Kandie, who was absent, and summons to the Chief Land Registrar to produce the deed file No. 12762; the 2nd defendant similarly sought an adjournment and summons to the Chief Land Registrar and the Director Land Administration to produce the correspondence file for LR No 1870/X/72. The plaintiffs opposed, noting no explanation for the witness's absence and that summons should have been sought earlier. Reviewing the record, the court noted the case had been adjourned in February 2021 for the 1st defendant's unpreparedness, directions were issued in November 2021 for filing of bundles by December 1, 2021, and the defendants had not complied by the time hearing commenced on January 19, 2022. The plaintiffs' case closed on July 18, 2022, when the defendants received a last adjournment on notice that there would be no further adjournment. The matter had come up on December 19, 2022, April 20, 2023 and June 8, 2023 without any indication the defendants intended to summon anyone. The court found the summons application came too late, declined both the summons and the adjournment, and declared the cases of the 1st and 2nd defendants closed. The ruling was delivered virtually on July 13, 2023.

Key legal issues

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01

Adjournment to call an absent defence witness

Holding

Adjournment refused; the defence case declared closed

Reasoning

The court reviewed the record: the 1st defendant had been unprepared in February 2021, directions were given in November 2021 for filing bundles by December 1, 2021, and a last adjournment was granted on July 18, 2022 with notice that the case would not be adjourned again. The defendants had nearly a year to prepare and the witness's absence was unexplained.

p. 2
02

Late application for witness summons to land registries

Holding

Summons application declined as made too late

Reasoning

The request to summon the Chief Land Registrar and Director Land Administration came after the plaintiff's case closed, though it should have been raised at pretrial. The matter had come up on December 19, 2022, April 20, 2023 and June 8, 2023 without the defendants indicating any intention to summon anyone.

p. 2

Legal principles established

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  • Applications to summon witnesses must be made at pretrial or before the plaintiff's case closes, not late in the defence hearing
  • A party granted a last adjournment and failing to attend risks its case being declared closed

Court orders

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  1. 1.The application to summon witnesses declined
  2. 2.Adjournment refused; the cases of the 1st and 2nd defendants stand as closed
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (trial of Environment & Land Case 228 of 2018)

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, "Oludhe & 2 others (All suing as the administrators of the Estate of Jackson Oludhe Aloo-Deceased) v Benken Enterprises Limited & another", Case Analysis (2023). Environment & Land Case 228 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18880/eng@2023-07-13

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