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ELCDismissed· [2025] KEELC 28 (KLR)

Karanja & another v Nabukwesi (Environment & Land Case E201 of 2022) [2025] KEELC 28 (KLR)

Environment and Land Court
16 January 2025
4,292 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a land suit dismissed for non-attendance, ruling that honest, truthful explanations are essential to reopen dismissed cases.

What this practically means

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Executive summary

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The Applicants, by Notice of Motion dated 9th October 2024 under Sections 1A and 1B of the Civil Procedure Act and Order 12 Rules 1 and 7 of the Civil Procedure Rules, sought the setting aside and variation of a judgment delivered on 23rd September 2024 dismissing their suit for non-attendance. They attributed their absence to a mistaken belief that the hearing would proceed virtually, relying on the Supreme Court [General] Practice Directions 2020, and contended that dismissal violated their right to fair hearing under Article 50. The Respondent opposed, asserting the Applicants were dishonest, that sufficient cause had not been shown, that the court had become functus officio, and that reinstatement would cause prejudice. The court framed two issues: whether sufficient cause was established, and whether the dismissal violated the right to fair hearing. On the first, the court found the record showed counsel for both parties were present at a virtual call-over where express directions were issued that the hearing would proceed at 11:00 in open court Number 25, and were disseminated to the advocates. It held that sufficient cause must be truthful and candid, and that the Applicants' explanation was a fabrication amounting to deceit and manipulation of facts; an explanation leaving doubt as to bona fides disqualifies an applicant from equitable discretion. On the second issue, the court held that the right to fair hearing guarantees reasonable notice and opportunity, not compulsory attendance; having been afforded due notice and opportunity but choosing not to utilise it, the Applicants could not claim a denial of fair hearing. The court dismissed the application with costs to the Respondent, to be taxed in the conventional manner.

Key legal issues

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01

Whether the Applicants established sufficient cause for non-attendance

Holding

No; the Applicants' explanation was a fabrication and lacked candour, disqualifying them from equitable discretion

Reasoning

The court found that the directions issued at the virtual call-over clearly specified that hearing would proceed at 11:00 in open court Number 25 and were disseminated to counsel. The Applicants' claim of confusion over virtual versus physical hearing was a creation of counsel, laced with deceit. Drawing on Court of Appeal authority, the court held that sufficient cause must be rational, plausible and truthful, and that explanations leaving doubt as to bona fides must be rejected.

p. 7
02

Whether dismissal for non-attendance violated the Applicants' right to fair hearing under Article 50

Holding

No; the right to fair hearing requires reasonable notice and opportunity, not forced attendance, and the Applicants spurned the opportunity afforded

Reasoning

The court held that fair hearing entitles a party to reasonable notice and opportunity to attend, but does not oblige a party to attend. Once a party is afforded due notice and a reasonable opportunity but chooses not to appropriate it, the party cannot contend they were denied fair hearing. The blame for the non-attendance lay with the Applicants, not the court.

p. 8

Legal principles established

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  • Sufficient cause must be truthful and is defeated by dishonesty or lack of candour
  • A party afforded notice and opportunity to be heard who fails to utilise it cannot claim denial of fair hearing

Court orders

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  1. 1.The Application dated the October 9, 2024 is dismissed.
  2. 2.Costs of the Application are awarded to the Respondent, to be taxed in the conventional manner.

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 12 Rule 1 and Rule 3
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (11)

  • Philip Chemwolo & Another v Augustine Kubende
    [1986] eKLR
  • John Naashon Mwangi v Kenya Finance Bank Ltd [in liquidation]
    [2015] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • John Mukuha Mburu v Charlse Mwenga Mburu
    [2019] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Lelei & 2 Others v Kimetu & 30 others
    ELC Case No. 143 of 2017 [2024] KEELC 1220 KLR
  • Raila Amolo Odinga & Others v IEBC & Others
    [2013] eKLR
  • Telkom Kenya Ltd vs John Ochanda [Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya ltd]
    [2014] eKLR
  • The Hon. Attorney General v The Law Society of Kenya & another
    Civil Appeal (Application) No. 133 of 2011
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
  • Union Insurance Co. of Kenya Ltd vs Ramzan Abdul Dhanji
    Civil Application No.179 of 1998 [Unreported]
Jurisdiction invoked
Section 1A and 1B of the Civil Procedure Act, Cap 21 and Order 12 Rule 1 and 7 of the Civil Procedure Rules, 2010

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, "Karanja & another v Nabukwesi (Environment & Land Case E201 of 2022) [2025] KEELC 28 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/28/eng@2025-01-16

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