Beach Villas Limited v Kassim (In the Capacity as a Joint Administrator of the Estate of Mohamed Kinango Kitonyo alias Kinango Kitonyo) & 5 others (Environment & Land Case 7 of 2020) [2024] KEELC 4263 (KLR)
The bottom line
#Kenya's Environment and Land Court in Malindi set aside missed land-suit proceedings, but only because the defendant agreed to pay the plaintiff Kshs 30,000 in thrown away costs within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the failure to diarize a hearing date constitutes sufficient cause for setting aside ex parte proceedings
The explanation of a forgotten diarized date was insufficient on its own, but the court set aside the proceedings anyway on substantive justice grounds, conditional on thrown away costs
The court found the application was filed inordinately late, with no explanation for the delay of almost a month after counsel learned of the proceedings. The diarization failure was insufficient to warrant exercise of discretion. However, balancing Article 159(2)(d) substantive justice against 159(2)(b) delay, and noting the corporate defendant bore no fault for its advocates' ineptitude, the court weighed against the greater evil and allowed the application on strict conditions with a costs sanction.
Whether the plaintiff's witness should be recalled for cross-examination
The application was allowed, which encompasses the recall of the plaintiff's witness, subject to payment of thrown away costs
The court invoked section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules empowering recall of a witness, and applied the principles in Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo. Despite the inordinate and unexplained delay, substantive justice and the defendant's blamelessness justified recall, conditioned on costs, with automatic vacation of the orders on default.
Legal principles established
#- The power to set aside ex parte proceedings is discretionary and the applicant must demonstrate sufficient cause for failure to attend court
- Article 159(2)(d) obliges courts to do substantive justice without regard to technicalities, even at some cost to a party or counsel
Court orders
#- 1.The application dated 11th May 2023 is allowed on condition that the 3rd defendant pays the plaintiff thrown away costs of Kshs 30,000/= within 30 days of the order
- 2.In default of payment, the orders granted stand automatically vacated and the case proceeds from where the plaintiff closed its case, with other parties prosecuting their respective defences
- 3.Mention on 26/6/2024 for ascertainment of compliance and fixing of a hearing date
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution of Kenya, 2010; sections 1A, 1B, 2A and 63(e) of the Civil Procedure Act; Order 12 rule 7, Order 18 rule 10 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beach Villas Limited v Kassim (In the Capacity as a Joint Administrator of the Estate of Mohamed Kinango Kitonyo alias Kinango Kitonyo) & 5 others (Environment & Land Case 7 of 2020) [2024] KEELC 4263 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4263/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.