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ELCAllowedNot stated in the judgment· [2025] KEELC 7951 (KLR)
Njoroge v Ndichu & others (Environment and Land Case 190 of 2017) [2025] KEELC 7951 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court allowed late cross-examination of a plaintiff, holding that the right to be heard outweighs procedural mistakes by lawyers.
What this practically means
#Executive summary
#The 1st Defendant, by Notice of Motion dated 6/03/2025 under Section 146(4) of the Evidence Act, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, sought recall of the Plaintiff for cross-examination after the Plaintiff's case had proceeded ex parte on 25/02/2025, her counsel alone attending. The Applicant explained that his counsel was held up at the Milimani Children's Court and later attached a cause list in a supplementary affidavit. The Plaintiff opposed, asserting delay, absence of a cause list initially, non-payment of throwaway costs, and that holding brief counsel raised no objection. The court, per Mogeni J, framed a single issue: whether the application was merited. Relying on Section 146(4) of the Evidence Act, Order 18 Rule 10, and Articles 50(1) and 159(2)(d) of the Constitution, and applying James Kanyiita Nderitu on the fundamental right to be heard, the court held the 1st-7th, 9th-17th and 19th-20th Defendants deserved an opportunity to be heard. It noted the Children's Court matter did not take precedence over the ELC but that a mistake of counsel should not ordinarily be visited on the client. Since only the Plaintiff had testified and closed her case, no prejudice would arise from her recall. The application was allowed: the Plaintiff's case reopened for cross-examination, the specified Defendants to pay Kshs. 10,000/- towards the Plaintiff's counsel and witness costs within 14 days, hearing within 45 days, failing which judgment date could be taken, with mention on 16/02/2026.
Key legal issues
#01
Whether defendants whose counsel failed to attend hearing should be allowed to recall the plaintiff for cross-examination
Holding
Application allowed; plaintiff's case reopened for cross-examination
Reasoning
The court held that the right to be heard is fundamental, invoking Article 50(1) and 159(2)(d) and Section 146(4) of the Evidence Act. Although the Children's Court matter did not take precedence over the ELC, justice demands that parties not be condemned unheard. Only the plaintiff had testified and closed her case, so no prejudice would be occasioned by her recall, conditioned on the defendants paying thrown-away costs.
p. 3
Legal principles established
#- The right to be heard before an adverse decision is fundamental; a mistake of counsel ought not be visited on the client, though not always, since the case belongs to the litigant
Court orders
#- 1.The Plaintiff's case be and is hereby reopened for the Defendants to cross-examine the Plaintiff
- 2.The 1st-7th Defendants/Applicants and 9th to 17th and 19th to 20th Defendants to cater for the Plaintiff's Counsel and witnesses costs totaling Kshs. 10,000/- within 14 days
- 3.The matter to be fixed for hearing within the next 45 days
- 4.If the Defendant fails to comply, the Plaintiff will be free to take a Judgment date
- 5.Mention for compliance and to take a hearing date on 16/02/2026
- Jurisdiction invoked
- Section 146(4) of the Evidence Act; Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Articles 50(1) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Ndichu & others (Environment and Land Case 190 of 2017) [2025] KEELC 7951 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7951/eng@2025-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.