Murage (Suing as the administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another (Environment & Land Case E046 of 2022) [2024] KEELC 5166 (KLR)
The bottom line
#Kenya's Environment and Land Court refused a defendant a second chance to participate after his own advocate's inaction, dismissing his application with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether to re-open the Plaintiff's case for cross-examination by the 2nd Defendant
Refused; the reason advanced was insufficient to warrant exercise of discretion in the 2nd Defendant's favour
The court presumed that counsel holding brief (Mr Muli) had full instructions from the principal advocate (Mr Diro), including the decision not to cross-examine. Nothing was placed before the court from Mr Diro denying those instructions. Re-opening would reward the applicant's own negligence since he had been given ample opportunity to participate.
Whether the orders of 26/10/2023 expunging the 2nd Defendant's documents should be reviewed under Section 80 CPA and Order 45 CPR
Refused; the statutory conditions for review were not met
The application was filed about three months after the orders, an inordinate and unexplained delay. There was no discovery of new and important matter, no error apparent on the face of the record, and the expungement was a conscious judicial decision. The documents had been filed out of time without leave and not fully served, and admitting them at that stage would ambush and prejudice the Plaintiff.
Legal principles established
#- An advocate who appears holding brief is presumed to have full instructions, and it is the responsibility of the principal advocate to fully brief the agent advocate
- Where a party has been accorded room to prepare and prosecute his case but wilfully refuses or is negligent, he cannot demand a second chance
- The court must guard against crafty parties seeking to ambush adversaries or delay hearings
Court orders
#- 1.The notice of motion dated 5/2/2024 is dismissed with costs
- 2.The suit to be listed on 16/9/24 for fixing of a mutually convenient hearing date
- Jurisdiction invoked
- Article 50 and 159(2)(a) and (d) of the Constitution; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 45 and Order 51 rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murage (Suing as the administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another (Environment & Land Case E046 of 2022) [2024] KEELC 5166 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5166/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.