Lubano & 2 others v Machuka & 4 others (Environment & Land Case 34 of 2022) [2024] KEELC 4503 (KLR)
The bottom line
#The Environment and Land Court in Malindi dismissed defendants' bid to re-open their case, ruling unexplained delay and a missing defence cost them the right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants' reasons for non-attendance and failure to file a defence justified re-opening the case, arresting judgment and leave to file a defence out of time
No. Although the court accepted the reasons for non-attendance might be sufficient, the defendants' inordinate delay in moving the court (from 2/2/2024 to 8/3/2024) and their unexplained default in filing a defence after entering appearance disentitled them to the discretion.
The court set out the principles for re-opening a case from Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo, including that a plea will be rejected where there is inordinate and unexplained delay or where re-opening is intended to fill gaps in evidence. The defendants did not dispute service of the hearing notice by email on 21/12/2023, became aware of the judgment process on 2/2/2024, yet only filed the application on 8/3/2024, and never explained the failure to file a defence for over 15 months after entering appearance. Their subsequent failure to file submissions as directed reinforced the impression of a party intent on delay rather than prosecution of the suit.
The statutory basis for recalling witnesses
Section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules confer power on the court to recall witnesses who have been examined.
The court recited both provisions, which permit a witness to be recalled for further examination-in-chief, cross-examination or re-examination at any stage of the suit. However, the discretionary power was not exercised in the defendants' favour because the equitable considerations of promptitude and diligence were absent.
Legal principles established
#- A party seeking to re-open a case must satisfactorily explain any delay and default; inordinate and unexplained delay and unexplained default in filing a defence disentitle the applicant to the court's discretion.
- Justice cuts both ways: a party who is instrumental in delay and obstruction cannot claim a right to be heard where the opposite party is entitled to an end to litigation.
Court orders
#- 1.The Notice of Motion dated 7/3/2024 is dismissed
- 2.Costs of the application to the Plaintiffs
- 3.The suit to be mentioned on 13/6/24 for issuance of a judgment date
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application brought under Order 51 of the Civil Procedure Rules and Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lubano & 2 others v Machuka & 4 others (Environment & Land Case 34 of 2022) [2024] KEELC 4503 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (Malindi ELC suit filed 7/6/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4503/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.