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ELCDismissedEnvironment and Land Case 64 of 2016· [2024] KEELC 6066 (KLR)

Ngao v Munga & 5 others (Environment and Land Case 64 of 2016) [2024] KEELC 6066 (KLR)

Environment and Land Court
24 September 2024
MNMwangi Njoroge
1,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to reopen a case because the parties' own lawyer had consented to the hearing date, showing missed hearings carry real consequences.

What this practically means

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Executive summary

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The 1st to 4th Defendants filed a notice of motion dated 9th June 2023 seeking to set aside ex parte proceedings and reopen the suit for hearing on merits, on the ground that their counsel missed the fixing of the next hearing date and that the other defendants acting in person may not have been served. They asserted they had a defence and counterclaim deserving ventilation. The Plaintiff opposed by replying affidavit, contending the hearing date of 14th February 2023 was taken by consent of counsel and the absence of the Defendants was intentional and inexcusable. The application was disposed of by written submissions. Mwangi Njoroge J framed the sole issue as whether the reopening sought was merited, and applied the principles in Susan Wavinya Mutavi v Isaac Njoroge and Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd (which quoted the Ugandan Simba Telecom decision and the Australian Smith v New South Wales) that reopening is a discretionary remedy to be exercised judiciously, not to fill evidentiary gaps, and refused where there is inordinate unexplained delay or prejudice to the opposite party. On the record, the matter had been fixed for hearing on 14th February 2023 by consent of the Applicants' and Plaintiff's counsel after an adjournment on 24th November 2022, and an affidavit of service established service on the 5th and 6th Defendants, who were not applicants. Finding no good ground to exercise the discretion, the court dismissed the application with costs to the Plaintiff. As the suit had been heard to conclusion before Hon Justice Odeny, the court ordered the Deputy Registrar to transmit the original file to the ELC at Nakuru for judgment preparation before Odeny J, judgment to be delivered on notice.

Key legal issues

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01

Whether the 1st-4th Defendants' application to set aside ex parte proceedings and reopen the case was merited

Holding

The application was dismissed; the hearing date was taken by consent of the Applicants' counsel and service on the other defendants was proved by affidavit of service, so no ground existed to reopen

Reasoning

The court applied the principles in Susan Wavinya Mutavi v Isaac Njoroge on the discretionary and judicious exercise of the jurisdiction to reopen. It found from the record that the matter was adjourned on 24th November 2022 and fixed for 14th February 2023 by consent of the Applicants' and Plaintiff's counsel, and that an affidavit of service confirmed service on the 5th and 6th Defendants. Accordingly, the claim that the Applicants were unaware of the hearing date could not stand and no ground justified reopening.

p. 3

Legal principles established

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  • Reopening of a case is a discretionary power to be exercised judiciously, ensuring no prejudice to the opposite party, and will be refused where it seeks to fill gaps in evidence or where there is inordinate, unexplained delay

Court orders

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  1. 1.The application dated 9/6/23 is dismissed for want of merit
  2. 2.Costs of the application to the plaintiff
  3. 3.The Deputy Registrar of the court shall forthwith transmit the original file to the ELC at Nakuru to be placed before Hon Odeny J for preparation of judgment
  4. 4.Judgment shall be delivered on notice

Authorities

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Cases cited (4)

  • Susan Wavinya Mutavi v Isaac Njoroge & another
    [2020] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Simba Telecom v Karuhanga & Anor
    [2014] UGHC 98
  • Smith v New South Wales
    [1992] HCA 36; [1992] 176 CLR 256
Jurisdiction invoked
Inherent discretion of the court to reopen a case; not expressly stated in the judgment

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, "Ngao v Munga & 5 others (Environment and Land Case 64 of 2016) [2024] KEELC 6066 (KLR)", Case Analysis (2024). Environment and Land Case 64 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6066/eng@2024-09-24

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