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ELCDismissedEnvironment and Land Appeal E046 of 2022· [2023] KEELC 18950 (KLR)

Ministry of Lands and Physical Planning & 2 others v Benson (Sued as the legal representative of the estate of Benson Mbuuri alias Kathakai Benson Mburi (Deceased); M'Mukangu (Interested Party)

Environment and Land Court
19 July 2023
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a government appeal because the appeal record was incomplete and the delay in asking to reopen the case was unexplained.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against a ruling of Hon. DW Nyambu CM delivered on 7 June 2022 in Meru ELC Case No. 22 of 2019, dismissing the appellants' application dated 25 May 2022 to reopen their defence after it had been marked closed on 5 April 2022. The underlying suit by the respondent, as administratrix of her late husband's estate, alleged that the appellants and the interested party fraudulently created land parcel Ruiri/Rwarera/2107 out of her 14-acre parcel, reducing it to 1.30 acres; she sought cancellation of title, map amendments, injunction and eviction orders. The appellants, government actors in the adjudication process, blamed their counsel's absence at a funeral for their failure to attend the hearing. CK Nzili J framed two issues: competence and merits. On competence, the court found the record of appeal fatally defective because it omitted the ruling appealed against, the application and the replying affidavits, contrary to Order 42 of the Civil Procedure Rules. On merits, the court held the trial court had accommodated the appellants repeatedly; the delay of nearly two and a half months in seeking reopening was inordinate and unexplained; the affidavit asserting that Mr Kiruai held brief was misleading and an afterthought; and no adjournment was sought, no costs offered and no remorse shown. The discretion to reopen a case must be exercised judiciously on sufficient grounds. The appeal was dismissed with costs.

Key legal issues

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01

Competence of the appeal

Holding

The appeal was incompetent because the record omitted the ruling appealed against, the application and the replying affidavits.

Reasoning

Order 42 of the Civil Procedure Rules requires key documents, including the order or ruling appealed against and all documents relied upon by the trial court, to accompany a record of appeal. Their absence rendered the appeal fatally defective.

p. 4
02

Whether the appellants were denied a fair hearing

Holding

No; the trial court accommodated the appellants repeatedly, and the delay in seeking reopening was inordinate and unexplained.

Reasoning

The appellants were served with hearing notices, failed to attend, and only moved the court close to two and a half months after their defence was closed. Counsel's funeral excuse was unsubstantiated, there was no adjournment request on record, and no costs, remorse or apology were offered.

p. 5
03

Credibility of the affidavit supporting reopening

Holding

The affidavit of Danson Kiruai Mukono claiming to have held brief was misleading and an afterthought.

Reasoning

The record showed Mr Kiruai never mentioned instructions to hold brief or sought an adjournment on 5.4.2022; the appellants' witnesses were also absent with no explanation, so the trial court was right to disregard the affidavit.

Legal principles established

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  • A record of appeal must contain the order or ruling appealed against and all documents relied upon by the trial court; omission is fatal to competence.
  • The discretion to reopen a case must be exercised judiciously on sufficient and reasonable grounds.

Court orders

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  1. 1.The appeal is dismissed with costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 25
  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 12 Rule 2 & 17 Rule (3)
  • Civil Procedure ActSection 1A

Cases cited (10)

  • Peters v Sunday Post
    (1958) E.A 424

    Duty of a first appellate court to re-appraise the evidence and reach independent findings.

  • Philip & Another v Augustine Kubende
    1982-88 KLR 103

    Cited by appellants on counsel's mistake not visiting parties.

  • James Mwangi Gathara & Another v OCS Loitoktok
    (2018) eKLR

    Cited by appellants on reasonable excuse for counsel's absence.

  • Agip Kenya Limited v Highlands Tyres Limited
    (2001) eKLR

    Cited by appellants on the right to be heard.

  • Evans Kidero v Ferdinard Waititu & 4 others
    Petition No. 18 of 2014 (2014) eKLR

    Cited by interested party on natural justice and right to be heard.

  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    Petition 7 of 2018 as consolidated with Petition 9 of 2018 (2018)

    Cited by interested party on fair hearing rights.

  • Mbithuka Titus v Jackline Mutindi
    (2020) eKLR

    Sufficient cause must be shown in granting an adjournment.

  • Joseph Ndungu Kamau v John Njihia
    (2017) eKLR

    Cited Samuel Kiti Lewa on prejudice, gaps and inordinate unexplained delay.

  • Samuel Kiti Lewa v HFCK Ltd & another
    (2015) eKLR

    Consideration of embarrassment and prejudice to the opposite party and unexplained delay.

  • Festus Shinyala v Kalasinga Ahmed
    (2021) eKLR

    Under Order 12 Rule 2 & 17 Rule (3), court may proceed where there is sufficient notice and delaying tactics.

On appeal from
Chief Magistrate's Court at Meru
Meru ELC Case No. 22 of 2019
Jurisdiction invoked
First appeal under Order 42 of the Civil Procedure Rules from the ruling of the Chief Magistrate's Court

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, "Ministry of Lands and Physical Planning & 2 others v Benson (Sued as the legal representative of the estate of Benson Mbuuri alias Kathakai Benson Mburi (Deceased); M'Mukangu (Interested Party)", Case Analysis (2023). Environment and Land Appeal E046 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18950/eng@2023-07-19

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