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ELCAllowedELC Case (2019), Malindi· [2024] KEELC 6217 (KLR)

Mwamule Company Limited v Chief Land Registrar & 2 others (Environment & Land Case 105 of 2019) [2024] KEELC 6217 (KLR)

Environment and Land Court
26 September 2024
1,139 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (E.K. Makori J) on a formal application dated 22nd February 2024 by the 2nd and 3rd Defendants seeking leave to file a defence out of time and to reopen the matter for cross-examination of the Plaintiff's sole witness. The 2019 suit had proceeded to full trial with the Plaintiff testifying; after failed court-annexed mediation, the Defendants' advocate sought to reopen the case, claiming the defence and statements had been filed by former counsel though absent from the court record. The court framed three issues: whether to reopen and admit the defence out of time; whether to recall the Plaintiff; and costs. The Plaintiff opposed, citing inordinate and unexplained delay since 2019 and relying on Njoroge v Kimani on excusable delay. Applying Samuel Kiti Lewa v Housing Finance Co. Kenya Ltd, the court held the discretion must be exercised judiciously and is defeated by inordinate unexplained delay, but found merit in the Defendants' proposed defence raising adverse possession backed by a judgment in ELC 132 of 2015 (OS) (Angote J), which could fully settle the suit. The court allowed the application on conditions: defence deemed filed, service within 14 days, recall of the Plaintiff, thrown-away costs of Kshs. 100,000 to the Plaintiff, immediate hearing, reversion to the earlier position on default, and costs of the application to the Defendants in any event.

Key legal issues

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01

Whether the Court should exercise discretion to reopen the case and admit the defence out of time despite inordinate delay

Holding

The Court allowed reopening because the proposed defence raises adverse possession supported by a judgment in ELC 132 of 2015 (OS), which may fully settle the suit, but on strict conditions

Reasoning

Although the Applicants' delay from 2019 was inordinate and unexplained, and the Court noted the excuse that former counsel was believed to have filed the defence was not pertinent, the proposed defence raises adverse possession backed by an existing judgment of the Court that could dispose of the whole suit. The Court therefore exercised its discretion judiciously but cushioned the Plaintiff with thrown-away costs and a default reversion clause.

p. 3
02

Whether the Plaintiff should be recalled for cross-examination

Holding

Yes, as a condition of reopening, the Plaintiff will be recalled for cross-examination

Reasoning

Since the defence and witness statements are admitted out of time, fairness requires that the Plaintiff, who had testified and closed the case, be recalled so the newly admitted defence can be tested. This is paired with thrown-away costs to compensate for the prolongation of litigation.

p. 3

Legal principles established

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  • The discretion to reopen a case must be exercised judiciously and not where there is inordinate and unexplained delay or where the purpose is to fill gaps in evidence
  • Excusable delay is unforeseeable delay beyond a party's control; non-excusable delay is foreseeable or within the party's control

Court orders

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  1. 1.The 2nd and 3rd Defendants granted leave to file a defence; the attached defence deemed properly filed
  2. 2.Service of the defence, witness statement and documents within 14 days
  3. 3.The Plaintiff to be recalled for cross-examination
  4. 4.The 2nd and 3rd Defendants to pay the Plaintiff thrown-away costs of Kshs. 100,000 within 14 days
  5. 5.The matter to be set down for hearing immediately
  6. 6.Failure to comply with the conditions, the earlier position (case closed) to revert
  7. 7.Costs of the application to be borne by the 2nd and 3rd Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 1

Cases cited (2)

  • Njoroge v Kimani
    [2022] KECA 1188
  • Samuel Kiti Lewa v Housing Finance Co. Kenya Ltd & another
    [2015] eKLR
Jurisdiction invoked
Inherent discretion of the Court under the Civil Procedure Act and Rules (application to file defence out of time and reopen case)

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, "Mwamule Company Limited v Chief Land Registrar & 2 others (Environment & Land Case 105 of 2019) [2024] KEELC 6217 (KLR)", Case Analysis (2024). ELC Case (2019), Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6217/eng@2024-09-26

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