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ELCPartially AllowedNot stated in judgment· [2024] KEELC 7102 (KLR)

Oboko v Nyangweso & 2 others (Environment & Land Case 456 of 2015) [2024] KEELC 7102 (KLR)

Environment and Land Court
30 October 2024
MSMunyao Sila
1,429 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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What this practically means

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Executive summary

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The plaintiff, who claimed ownership of land parcel Bassi/Bogetaorio II/4072 bought in 2012 and sought rectification of the register over the 1st defendant's rival title, applied by notice dated 18 June 2024 to set aside the proceedings and orders of 10 June 2024, when his counsel's adjournment application was declined, counsel walked out, the respondents' counterclaim evidence was taken and the hearing was closed. The court traced a history of repeated adjournments since 2018, several on the ground that the plaintiff was out of the country. On 10 June 2024 the plaintiff was said to be attending a seminar in Ethiopia; the court found no evidence of travel had been presented that day, noted the hearing date had been given six months earlier, and that the case, a 2015 matter, had been in court for nine years with the plaintiff's evidence-in-chief pending cross-examination since 2018. The court held it properly exercised its discretion in refusing the adjournment. Nevertheless, out of its own grace and mandate to do justice, not the merits of the applicant's explanation, it set aside the 10 June 2024 proceedings on conditions: the plaintiff to pay thrown away and punitive costs of Kshs. 100,000/= jointly to the 1st and 2nd defendants and Kshs. 20,000/= to the 3rd respondent through the Attorney General within 14 days, failing which the application would stand struck out. Upon payment, the case reopens for the plaintiff to be cross-examined, to call additional witnesses and to cross-examine the respondents' witnesses. Orders accordingly.

Key legal issues

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01

Whether the adjournment on 10 June 2024 was properly declined

Holding

Yes; the court properly exercised its discretion given the applicant's history of adjournments and absence

Reasoning

The hearing date was given six months earlier and no evidence of travel was presented on the date. The case had been in court for nine years, with the applicant's evidence-in-chief taken in 2018 and pending cross-examination for six years. The applicant had a history of absenting himself citing foreign travel. The court found the seminar did not justify priority over the hearing.

p. 3
02

Whether the proceedings of 10 June 2024 should be set aside to allow the applicant to be heard

Holding

Yes, but only out of the court's grace and subject to payment of thrown away and punitive costs

Reasoning

Although the adjournment refusal was proper, the court invoked its wide mandate to do justice and reopened the case so the plaintiff could be cross-examined and cross-examine the respondents' witnesses. The grace was conditional on paying costs within 14 days, failing which the application would stand struck out.

p. 3

Legal principles established

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  • A party who persistently seeks adjournments and absents himself must compensate the other side with thrown away and punitive costs before being allowed back on record
  • The court may decline adjournments where a hearing date was fixed long in advance and no sufficient justification is shown

Court orders

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  1. 1.Application allowed; proceedings of 10 June 2024 set aside
  2. 2.Applicant to pay thrown away and punitive costs of Kshs. 100,000/= jointly to the 1st and 2nd defendants/respondents through their counsel on record
  3. 3.Applicant to pay Kshs. 20,000/= to the 3rd respondent through the Attorney General
  4. 4.Costs to be paid within 14 days failing which the application shall stand struck out
  5. 5.Upon payment, case reopened for the applicant to attend for cross-examination, call additional witnesses, and cross-examine the respondents and/or their witnesses who testified on 10 June 2024
Jurisdiction invoked
Inherent discretion of the court to do justice; not expressly stated by statute

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, "Oboko v Nyangweso & 2 others (Environment & Land Case 456 of 2015) [2024] KEELC 7102 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7102/eng@2024-10-30

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