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ELCDismissedEnvironment and Land Appeal 010 of 2024· [2024] KEELC 6020 (KLR)

Dado v Noor & 6 others (Environment and Land Appeal 010 of 2024) [2024] KEELC 6020 (KLR)

Environment and Land Court
23 September 2024
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Isiolo refused to reopen a land case, ruling that deliberately skipping court cannot be fixed by paying costs.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by notice of motion dated 13th May 2024 seeking to set aside the proceedings, judgment and consequential orders of 6th May 2024, dismissing his suit, and to reopen the case so he could give evidence and recall the defendants' witnesses for cross-examination. He explained his non-attendance at the 8th April 2024 hearing by reference to fasting during Ramadhan, incomplete pleadings, and the absence of a pre-trial conference, relying on authorities to the effect that the court has discretion to set aside ex parte orders and that disputes should be heard on their merits. The Defendant/Respondent opposed, contending that ex parte proceedings under Order 12 Rules 1 and 2 of the Civil Procedure Rules are lawful where the hearing date was known, and that the plaintiff never explained his absence on the day of the hearing. The court held that it neverthetically allowed the defendants to tender evidence at the ex parte hearing, and that a judgment lawfully entered under Order 12 can only be set aside on a satisfactory explanation. Noting that the plaintiff and his advocate had failed to attend on four dates (5/2/2024, 4/3/2024, 12/3/2024 and 8/4/2024) despite knowledge, and that nearly a month elapsed between judgment and the application without inquiry, the court found the conduct deliberately intended to obstruct or delay justice and not curable by costs. The application was dismissed with costs to the Defendants/Respondents.

Key legal issues

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01

Whether the ex parte proceedings and subsequent judgment complied with Order 12 Rules 1 and 2 of the Civil Procedure Rules and whether they should be set aside

Holding

The application lacked merit; the hearing proceeded in accordance with Order 12 and no satisfactory explanation was given for the plaintiff's non-attendance across multiple dates

Reasoning

The court noted that the plaintiff and his advocate failed to attend on 5/2/2024, 4/3/2024, 12/3/2024 and 8/4/2024 despite knowledge of the hearings. After judgment, nearly a month passed before the application was filed, during which a diligent litigant would have made inquiries at the registry. The discretion to set aside a judgment exists but must be exercised judiciously and with good reason, none of which was shown here.

p. 3
02

Whether the plaintiff's non-attendance was excusable, as claimed, due to observance of Ramadhan and incomplete pleadings

Holding

The explanation was rejected; the conduct was found deliberate and intended to obstruct or delay justice and not curable by costs

Reasoning

The plaintiff attributed non-attendance to fasting during Ramadhan and to pleadings not having closed, but the court found no denial of knowledge of the hearing dates and no explanation offered on the hearing day itself. The court reasoned that allowing such refusal to be cured by costs would make money, not justice, king in the administration of justice.

p. 4

Legal principles established

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  • Where a hearing proceeds in accordance with Order 12 of the Civil Procedure Rules, the resulting judgment can only be set aside if a satisfactory explanation for non-attendance is rendered
  • The court's discretion to set aside its own judgments or orders, though unfettered, must be exercised judiciously and with good reason
  • A litigant's deliberate refusal to participate in a hearing cannot simply be cured by an award of costs

Court orders

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  1. 1.This application is hereby dismissed
  2. 2.Costs shall follow the event and are awarded to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure Actoverriding objective
  • Civil Procedure RulesOrder 12 Rule 1
  • Civil Procedure RulesOrder 12 Rule 2
  • Constitution of KenyaArticle 40

Cases cited (4)

  • JTM v RGA (Civil Case 43 of 2016) [2021] KEHC 15385 (KLR)
    [2021] KEHC 15385 (KLR)
  • Phillip Keipto & Another v Augustine Kubende
    [1986] eKLR
  • David Kiptanui Yego and 134 Others v Benjamin Rono & 3 Others
    [2021] eKLR
  • Trust Bank Limited v Amalo Company Limited
    [2002] eKLR
Jurisdiction invoked
Inherent discretion of the court to set aside its own judgment, together with Order 12 Rules 1 and 2 of the Civil Procedure Rules and the overriding objective of the Civil Procedure Act

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, "Dado v Noor & 6 others (Environment and Land Appeal 010 of 2024) [2024] KEELC 6020 (KLR)", Case Analysis (2024). Environment and Land Appeal 010 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6020/eng@2024-09-23

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