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ELCDismissedNot stated in the extract (notice of motion dated 4th March, 2025)· [2025] KEELC 5981 (KLR)

Njeru ((Suing as the administrator of the Estate of Samuel Njeru M’Uthi - Deceased)) v Chepkonga & 2 others (Environment and Land Case 167 of 2015) [2025] KEELC 5981 (KLR)

Environment and Land Court
4 September 2025
CMC. G. Mbogo
1,404 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused a defendant abroad's request to testify virtually, ordering her to appear in person because her identity and documents are disputed.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 4th March, 2025 by the 1st defendant in a land dispute before the Environment and Land Court, seeking to set aside orders requiring her physical attendance at the hearing and to have the matter conducted by hybrid hearing. The application was anchored on Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 3 and 23 of the Environment and Land Court Act and Order 51 Rule 1 of the Civil Procedure Rules. The defendant, who is stationed out of the country, deposed that obtaining commercial flights was difficult, that she had previously testified virtually in a related matter, and that the plaintiff's insistence on physical attendance was in bad taste and threatened her right of access to justice under Article 48. The plaintiff opposed, raising serious doubts about the defendant's identity and the authenticity of documents used in the transfer of the suit property, and contending that only an in-person hearing would allow face-to-face confrontation and serve the overriding objective. The court framed a single issue: whether the orders requiring physical attendance should be set aside. Relying on Section 23(3) of the Environment and Land Court Act, which gives the court discretion over the mode of proceedings, and noting that the plaintiff's concerns about identity and possible fraud went to the heart of the dispute, the court held that the overriding objective would be best served by physical attendance. The court declined to set aside the direction of 2nd October, 2024, directed the parties to agree on a hearing date in advance, dismissed the motion and awarded costs in the cause.

Key legal issues

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Whether to set aside orders requiring physical attendance of the 1st defendant at the hearing

Holding

Application dismissed; physical attendance retained because the overriding objective is best served given unresolved questions of identity and possible fraud

Reasoning

The court noted the plaintiff doubts the defendant's identity and the authenticity of documents in the transfer of the suit property, and that physical hearing allows the court to observe witnesses' demeanor. Although the defendant is stationed abroad and virtual hearing would save costs, the court declined to downplay the plaintiff's concern. Section 23(3) gives the court discretion over the mode of hearing.

p. 3

Legal principles established

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  • Section 23(3) of the Environment and Land Court Act gives the court discretion to decide the manner in which a trial will be conducted, including whether hearing is virtual or physical

Court orders

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  1. 1.The notice of motion dated 4th March, 2025 is dismissed
  2. 2.Costs in the cause
  3. 3.The 1st defendant must appear in court physically for the hearing; parties to agree on a hearing date in advance and ensure the hearing proceeds
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 3 and 23 of the Environment and Land Court Act, 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, "Njeru ((Suing as the administrator of the Estate of Samuel Njeru M’Uthi - Deceased)) v Chepkonga & 2 others (Environment and Land Case 167 of 2015) [2025] KEELC 5981 (KLR)", Case Analysis (2025). Not stated in the extract (notice of motion dated 4th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5981/eng@2025-09-04

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