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ELCAllowed· [2025] KEELC 572 (KLR)

Hanson Developers Limited v Hanson Developers Limited & 3 others (Environment & Land Case E053 of 2021) [2025] KEELC 572 (KLR)

Environment and Land Court
13 February 2025
MOMOGENI
2,199 words in judgment
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The bottom line

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A Kenyan court reopened a company's land case despite its lawyer's no-show, but made the company pay costs for the delay.

What this practically means

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Executive summary

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The 1st Defendant brought a Notice of Motion under Articles 159 and 50 of the Constitution, Sections 1A, 1B(a), 3A and 63(e) of the Civil Procedure Act and Orders 8 and 51 of the Civil Procedure Rules, seeking priority hearing, recall of the Plaintiff's three witnesses (David Bett Langat, Daniel Njoroge Kihiko and Joseph Gwandaru) for cross-examination, and reopening of its own case. The suit had been partly heard on 7/11/2023, when the 1st Defendant's Counsel failed to attend despite appearing in the virtual call over, and the Plaintiff's case and the 1st and 2nd Defendants' cases were closed; the 1st Defendant's Directors arrived late. The Plaintiff and 3rd Defendant opposed, alleging the Applicant's affidavits were contradictory and tainted with perjury, that the Directors were present in Court on 7/11/2023, and that the six-month delay was inordinate. Mogeni J framed one issue: whether the 1st Defendant was entitled to the discretionary orders sought. Relying on Order 18 Rule 10 of the Civil Procedure Rules, Section 146(4) of the Evidence Act and the Odoyo Osodo decision, the Court held that the discretion to reopen a case must be exercised judiciously, and that since judgment was pending and no irreparable prejudice was shown, it was in the interest of justice to allow the Application. The Court ordered recall of the Plaintiff's witnesses for cross-examination, reopening of the 1st Defendant's case, and that the 1st Defendant pay the costs of the Application plus throw-away costs of Kshs 40,000 before the next hearing on February 27, 2025. The Application dated 20/05/2024 was allowed in its entirety.

Key legal issues

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Whether the Court should exercise its discretion to recall the Plaintiff's witnesses and reopen the 1st Defendant's case after closure of the Plaintiff's case and the 1st and 2nd Defendants' cases

Holding

Yes. In the interest of justice, the 1st Defendant was allowed to testify and call its witnesses and to cross-examine the Plaintiff's witnesses, since no new evidence was sought and no irreparable prejudice was demonstrated

Reasoning

The Court invoked Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act, which permit recall of witnesses. Applying Odoyo Osodo v Rael Obara Ojuok, the discretion must be exercised judiciously. Although the Applicant's explanation was unconvincing and it is a litigant's duty to manage its case, judgment had not been rendered and the Respondents showed no prejudice incapable of cure by costs. The Applicant was not seeking to introduce new evidence.

p. 4

Legal principles established

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  • The decision whether or not to re-open an on-going case is a matter of judicial discretion to be exercised judiciously and in the interest of justice
  • It is the responsibility of each litigant to manage its case and not lay blame on their Counsel

Court orders

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  1. 1.Recall of the Plaintiff's witnesses Mr. David Bett Langat, Mr. Daniel Njoroge Kihiko and Mr. Joseph Gwandaru for cross-examination by the 1st Defendant's Advocate
  2. 2.Reopening of the 1st Defendant's case and the Defendant allowed to testify together with all its witnesses
  3. 3.1st Defendant to pay the costs of the Application and throw-away costs of Kshs 40,000 before the next hearing on February 27, 2025

Authorities

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Legislation

  • Constitution of KenyaArticles 159 and 50
  • Civil Procedure ActSections 1A, 1B(a), 3A and 63(e)
  • Civil Procedure RulesOrder 51 Rule 1 and Rule 10(2); Order 8; Order 18 Rule 10
  • Evidence ActSection 146(4)

Cases cited (1)

  • Odoyo Osodo Vs. Rael Obara Ojuok & 4 Others
    [2017] eKLR
Jurisdiction invoked
Articles 159 and 50 of the Constitution of Kenya; Sections 1A, 1B(a), 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 and Rule 10(2) and Order 8 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, "Hanson Developers Limited v Hanson Developers Limited & 3 others (Environment & Land Case E053 of 2021) [2025] KEELC 572 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/572/eng@2025-02-13

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