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ELCDismissedConstitutional Petition No 29 of 2021· [2024] KEELC 1685 (KLR)

Mwongera v Agricultural Development Corporation & another (Constitutional Petition 29 of 2021) [2024] KEELC 1685 (KLR)

Environment and Land Court
20 March 2024
MNMwangi Njoroge
640 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a landowner's request for an oral hearing because his lawyer missed a deadline to file written submissions, with costs awarded against him.

What this practically means

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Executive summary

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The petitioner, Dr. Frank Kamunde Mwongera, moved the court by Notice of Motion dated 26th January 2024 seeking orders that his petition be heard by way of viva voce evidence and that costs of the application be provided for. He deponed that he purchased two plots from the 1st respondent, paid the full purchase price and incidentals, was issued receipts, and that the 1st respondent by a letter dated 30th November 1995 confirmed deed plans were ready and titles were duly issued. He alleged that in 2018 the 1st respondent failed to respond to his notice of intention to take possession, that he fenced the properties with a stone wall, and that in January 2019 an employee of the 1st respondent vandalized and destroyed the fence and stole fencing materials, a matter reported at Malindi Police Station. He argued that as registered proprietor denied possession, oral evidence was imperative. The 2nd respondent opposed via grounds of opposition, contending that under Rule 20(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules the applicant must demonstrate need for oral evidence, that affidavit evidence under Rule 20(1)(a) is legally admissible and of equal standing, and that no exceptional circumstances existed. The court directed on 1st February 2024 that the application be disposed of by written submissions; neither party filed submissions within the 21 days allowed. Holding that failure by the applicant to file submissions signals disinterest, the court dismissed the application for want of prosecution with costs to the respondents.

Key legal issues

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01

Whether the petitioner's application for viva voce evidence could succeed absent demonstration of need for oral evidence and compliance with procedural directions

Holding

The application was dismissed for want of prosecution because the petitioner failed to file written submissions as directed

Reasoning

On 1st February 2024 the court directed that the application be disposed of by written submissions, with parties to exchange submissions within 21 days. Neither party complied. The court held that failure by an applicant to file submissions where written submissions are the prescribed mode of disposal signals disinterest in prosecuting the application. In the circumstances, the application seeking leave to tender viva voce evidence was not prosecuted and fell to be dismissed with costs to the respondents.

p. 2

Legal principles established

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  • Where the court directs that an application be disposed of by written submissions and no alternative directions are given, failure by the applicant to file submissions signals disinterest and warrants dismissal for want of prosecution

Court orders

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  1. 1.The application dated 26th January 2024 is dismissed for want of prosecution
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 20(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 20(1)(a)
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (petition proceedings)

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, "Mwongera v Agricultural Development Corporation & another (Constitutional Petition 29 of 2021) [2024] KEELC 1685 (KLR)", Case Analysis (2024). Constitutional Petition No 29 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1685/eng@2024-03-20

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