Abdullahi & another v National Land Commission & 3 others; Kenya Deposit Insurance Corporation (Receivers of Dubai Bank Kenya Limited) (Interested Party) (Environment & Land Petition 3 of 2017) [2024] KEELC 4514 (KLR)
The bottom line
#A Mombasa court reopened a land case after judgment was looming, ruling that a lawyer's honest scheduling mistake shouldn't deny a party key evidence from the Lands Ministry.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for review and setting aside of the court's directions of 5th March 2024 declining an adjournment was merited
The application succeeded; the court found the Applicant's inadvertent error in diarizing the hearing date, combined with the sensitivities of a land dispute with double titles and the constitutional right to fair hearing, justified curing the misadventure
The court noted the Applicant's counsel averred he inadvertently diarized 6th March 2024 instead of 5th March 2024, and that the only annexure (summons for 31st March 2022) had no probative value. Nevertheless, invoking Article 159(1) and (2) of the Constitution, the overriding objective, natural justice, equity and the sensitivity of a land dispute involving two titles over the same property, the court held the errors were curable misadventures and allowed the application.
Whether the Applicant was entitled to have the Director of Land Administration summoned to testify despite the witness not being on the list of witnesses and the matter awaiting judgment
Yes. Although numerous authorities decline late summons to witnesses not listed, the court held that justice required the Director's testimony on the origination of the Letters of Allotment and Certificates of Lease, given the existence of two titles over the suit property
The court acknowledged authorities against summoning a witness not listed and late in the day, but invoked rule 20(4) permitting the court to summon witnesses and the maxim fiat justitia ruat caelum, holding that justice would not be done without the Director of Land Administration's participation. The Land Registrar had already testified; the Director's evidence on issuance of allotments and leases for public land was critical. The court expedited the hearing and deferred the judgment date.
Costs of the application
Each party to bear their own costs, despite the Applicant's success
Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court exercised its discretion in the prevailing circumstances to direct each party to bear their own costs.
Legal principles established
#- A court may, on its own motion or on application by a party, summon any person it deems a necessary witness to testify or produce documents, particularly where the evidence is needed for a just determination
- The right to a fair trial under Article 50 includes the right to adduce and challenge evidence, and courts should cure inadvertent errors that would shut out critical evidence
Court orders
#- 1.The Notice of Motion application dated 2nd April, 2024 be and is hereby allowed
- 2.The 3rd Respondent's case to be reopened strictly for hearing of the Director of Land Administration, Mr. Gordon Ochieng or any officer working under him, to appear in Court on 17th June, 2024 to tender evidence
- 3.Witness summons to issue against the Director of Land Administration
- 4.Parties to file and serve written submissions: Petitioner within 21 days; 1st, 2nd and 3rd Respondents and Interested Party within 14 days
- 5.Judgement date deferred from 8th July, 2024 to 31st July, 2024
- 6.Any document not listed in the supporting affidavit dated 24th March 2017 and supplementary list of documents dated 7th December, 2017 will not be admissible
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Articles 10, 50(1), 25(c) and 47 of the Constitution of Kenya, 2010; Rules 3, 19 and 20(4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Sections 80 and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdullahi & another v National Land Commission & 3 others; Kenya Deposit Insurance Corporation (Receivers of Dubai Bank Kenya Limited) (Interested Party) (Environment & Land Petition 3 of 2017) [2024] KEELC 4514 (KLR)", Case Analysis (2024). Not stated in the judgment (Constitution Petition, Environment & Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4514/eng@2024-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.