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ELCPartially AllowedNot stated in the ruling· [2025] KEELC 3693 (KLR)

Steyn v Nsense (Environment & Land Case E002 & E008 of 2022 (Consolidated)) [2025] KEELC 3693 (KLR)

Environment and Land Court
5 May 2025
2,503 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 Ruling by L. Komingoi J of the Environment and Land Court at Kajiado, dated 5th May 2025, determines a Notice of Motion dated 14th March 2024 by the Defendant/Applicant seeking to set aside the ex-parte proceedings of 6th March 2024 by which the defence case was closed after counsel and the Land Registrar Kajiado North failed to attend a virtual hearing, and to reopen the defence case so the Registrar could testify and produce documentary evidence. The Respondent opposed, citing a history of adjournments granted at the Defendant's behest, a prior indulgence allowing reopening to summon the Registrar, and argued that the Registrar could only speak to records already on file, not the parties' intentions or the type of tenancy. The Respondent also contended the application should be struck out because it was filed by E Valerie Advocates although the notice of change of advocates on record indicated Kilomenn Advocates. The court framed three issues: propriety of the application on record, merit of the reopening application, and costs. It declined to strike out the application, holding it would not be in the interest of justice since counsel had acted for the Defendant openly since April 2023, but ordered counsel to regularise her status within 7 days. On the merits, the court found the Registrar's proposed evidence not strictly indispensable but, invoking its discretion and the right to a fair trial under Article 50, reluctantly allowed the application: the ex-parte proceedings were set aside, the defence case reopened with the Registrar permitted to testify, the Plaintiff also at liberty to adduce further evidence, and costs of the application borne by the Defendant/Applicant.

Key legal issues

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01

Whether an application filed by counsel not formally on record should be struck out

Holding

The application was properly before the court since the Respondent had been servicing pleadings on the firm and counsel had been acting for the Defendant; striking out would not serve justice, but counsel was ordered to regularise her status within 7 days.

Reasoning

The Court Tracking System showed the application was filed by E Valerie Advocates although the notice of change of advocates on record indicated Kilomenn Advocates. However, the court record showed Ms. Valerie Mong'are had been acting for the Defendant since April 2023 with the knowledge of the Respondent, who had been serving pleadings on her firm. Striking out would therefore not be in the interest of justice.

p. 4
02

Whether the Defendant's case should be reopened for the Land Registrar's testimony

Holding

The court reluctantly allowed the reopening and set aside the order closing the defence case, but noted the discretion must be exercised cautiously.

Reasoning

Although the court found the Registrar's evidence not strictly indispensable - the Registrar could testify only to the veracity and authenticity of records held, not the type of tenancy between the parties - and despite the Applicant's history of adjournments and non-attendance, the court invoked its discretion and the fair-trial guarantee under Article 50 to allow reopening, with the Plaintiff also at liberty to adduce further evidence.

p. 5
03

Whether the Registrar's proposed evidence was new, crucial evidence

Holding

The court found it was not: the entries of the land register were not in dispute, and the nature of the parties' tenancy was not a matter on which the Registrar could testify.

Reasoning

The court reasoned that a Land Registrar can only speak to documents issued by their office and records held, not to the intention of the parties or the type of tenancy entered into. That issue could be determined on the evidence already on record, so the proposed evidence would not cause the prejudice alleged.

p. 5

Legal principles established

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  • Courts have discretion to reopen a case, but it must be exercised judiciously and only on cogent reasons
  • Reopening requires exceptional circumstances including evidence of genuine efforts to secure the witness and explanation for prior failures

Court orders

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  1. 1.The ex-parte proceedings of 6th March 2024 that led to the close of the Defence case are set aside.
  2. 2.The Defendant/Applicant do reopen his case and the Land Registrar Kajiado North be allowed to testify and produce documentary evidence.
  3. 3.The Plaintiff be at liberty to reopen his case and adduce further evidence if need be.
  4. 4.Costs of the application be borne by the Defendant/Applicant.
  5. 5.Counsel for the Applicant/Defendant to regularise their status on record within 7 days of the Ruling.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Evidence ActSections 35, 48 (Part III) and 83
  • Constitution of Kenya, 2010Articles 50 and 159

Cases cited (16)

  • Shah vs Mbogo
    [1979] EA 116
  • Samuel Kiti Lewa vs Housing Finance Company Kenya Ltd
    [2015] eKLR
  • Smith vs New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
  • Abdirahman Abdi also known as Adirahman Muhumed Abdi vs Safi Petroleum Products Ltd & 6 others
  • Kirori vs Kirori
    [2023] KEELC 16058 (KLR)
  • Sofie Feis Caroline Lwangu vs Benson Wafula Ndote
    [2022] eKLR
  • Wavinya Mutavi vs Isaac Njoroge & another
    (2020) eKLR
  • Mukazitoni Josephine vs Attorney General Republic of Kenya
    [2015] eKLR
  • Kasera & another vs Richard
    [2022] KECA 1025 (KLR)
  • Hassan Hashi Shirwa vs Swalahudin Mohamed Ahmed
    [2011] KEHC 3158 (KLR)
  • Odoyo Osodo vs Rael Obara Ojuok & 4 others
    [2017] eKLR
  • Susan Wavinya Mutavi vs Isaac Njoroge & Another
    [2020] KEELC 8 (KLR)
  • Michael Kiplangat Cheruiyot vs Joseph Kipkoech Korir
    [20L9] eKLR
  • Peter Ngigi vs Francis Kigira
    [2022] eKLR
  • Cyrus Shakhalagakhwa Jirongo vs Soy Developers Limited & 9 Others
    [2020] eKLR
  • Hannah Wairimu Ngethe v Francis Mungai Ng'ang'a & another
    [2016] KEHC 7330 (KLR)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; Articles 50 and 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Steyn v Nsense (Environment & Land Case E002 & E008 of 2022 (Consolidated)) [2025] KEELC 3693 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3693/eng@2025-05-05

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