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ELCPartially Allowed· [2024] KEELC 6634 (KLR)

Mugo (Chairman) & 2 others (Suing for an on Behalf of Gwikuria Self Help Group) v Njau (Environment & Land Case E120 of 2022) [2024] KEELC 6634 (KLR)

Environment and Land Court of Kenya (station: Thika)
9 October 2024
JKJ G Kemei
1,075 words in judgment
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The bottom line

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A Thika land court refused to restart a part-heard case but allowed the defendant to cross-examine witnesses already heard, after paying Kshs 5,000 costs.

What this practically means

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Executive summary

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This ruling by J G Kemei, Judge, of the Environment and Land Court at Thika determined the Defendant/Applicant's Notice of Motion dated 22/12/2023 seeking, under Article 159(2)(d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, to set aside ex parte proceedings held on 24/10/2023 and have the suit heard afresh, or in the alternative to recall the Plaintiff's witnesses who had testified for cross-examination. The application was supported by an affidavit of the Defendant's counsel, Ruth Kuria, who conceded that a communication breakdown between her and the client led to her filing an application to cease acting, which was not heard before the ex parte proceedings. The Plaintiff, Andrew Ngugi Mugo, opposed, terming the application an abuse of process. The court noted the hearing date had been taken by consent before the Deputy Registrar, that the Defendant was aware of it, and that despite falling out with her counsel the Defendant made no personal effort to attend, even virtually. The court therefore held that the threshold for setting aside the ex parte proceedings was not met and declined that relief. However, in the interests of justice, and finding that the Plaintiff and two witnesses had testified ex parte and that the Plaintiff demonstrated no prejudice, the court allowed the alternative prayer: the witnesses who testified on 24/10/2023 are to be recalled for cross-examination and re-examination, conditional on the Defendant paying throw away costs of Kshs. 5,000/- to the Plaintiff within 15 days. Parties were directed to fix the suit for hearing expeditiously. The application was thus partially allowed; the court applied the oxygen principle and the decision in African Safari Club v Safe Rentals Limited on equal footing of parties.

Key legal issues

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01

Whether the ex parte proceedings of 24/10/2023 should be set aside and the suit heard afresh

Holding

The court declined to set aside the ex parte proceedings; the hearing date had been taken by consent, the Defendant knew of it, and she personally failed to attend or log in virtually.

Reasoning

The hearing date was fixed by consent before the Deputy Registrar on 27/4/23, so the Applicant was aware of it. Her counsel's application to cease acting, filed the morning of the hearing, did not excuse the Defendant's own absence. The court emphasised that a case belongs to the client, who must take steps to assist the court achieve the overriding objective, and noted virtual courts are easily accessible.

p. 3
02

Whether the Plaintiff's witnesses who testified ex parte should be recalled for cross-examination

Holding

Allowed in the interests of justice, conditional on payment of throw away costs of Kshs. 5,000/- to the Plaintiff within 15 days.

Reasoning

The suit was part-heard with the Plaintiff and two witnesses having testified. Contrary to the Plaintiff's claim that only one witness testified, the record showed three had testified and an adjournment was sought for the last witness. The Plaintiff demonstrated no prejudice from recalling the witnesses, and the oxygen principle requires placing parties on an equal footing.

p. 3

Legal principles established

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  • A litigant who has fallen out with counsel must nonetheless take personal steps to attend court and safeguard their interests; virtual court access makes non-attendance difficult to excuse.
  • In balancing set-aside applications, courts treat parties on an equal footing per the oxygen principle, and a respondent must demonstrate prejudice from recalling witnesses.

Court orders

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  1. 1.Prayer (d) of the application allowed: the Plaintiff's witnesses who testified on 24th October 2023 to be recalled for cross-examination and re-examination, subject to the Defendant paying throw away costs of Kshs. 5,000/- to the Plaintiff within 15 days
  2. 2.Prayer (c) for setting aside ex parte proceedings and hearing afresh declined
  3. 3.Parties directed to fix the matter for hearing expeditiously
  4. 4.Costs of the application to abide the outcome of the suit (as sought)

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 18 Rule 10; Order 51 Rule 1

Cases cited (1)

  • African Safari Club Vs. Safe Rentals Limited
    [2010] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 18 Rule 10 & Order 51 Rule 1 of the Civil Procedure Rules

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, "Mugo (Chairman) & 2 others (Suing for an on Behalf of Gwikuria Self Help Group) v Njau (Environment & Land Case E120 of 2022) [2024] KEELC 6634 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6634/eng@2024-10-09

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