Kehar v Busam Capital Limited & 2 others (Environment & Land Case 41 of 2018) [2023] KEELC 17830 (KLR) (30 May 2023) (Ruling) Neutral citation: [2023] KEELC 17830 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAJIADO ENVIRONMENT & LAND CASE 41 OF 2018 MN GICHERU, J MAY 30, 2023 BETWEEN SUSAN CHETAMBE KEHAR ................................................................... PLAINTIFF AND BUSAM CAPITAL LIMITED .......................................................... 1ST DEFENDANT DISTRICT LAND REGISTRAR, KAJIADO ............................... 2ND DEFENDANT BRENDAH JEROTICH CHEPKIYENG ....................................... 3RD DEFENDANT RULING 1. 2. This ruling is on the Notice of Motion dated December 16, 2022. The Motion which is by the Plainti is brought under Order 12 Rule 7, 18 Rule 10 and 51 Rule 1 Civil Procedure Rules, Section 3A of the Civil Procedure Act and all enabling provisions of law. The motion has two main prayers namely:a. Setting aside the order dated November 24, 2022 dismissing the Plaintis and reinstating the same for hearing. b. Stay of judgment scheduled for May 30, 2023 on the third Defendant’s counterclaim and the recall of the witness for cross-examination by the Plainti. The motion is supported by eight grounds, two adavits and two annexures. The gist of all this material is that the Plainti and her counsel failed to appear in court for two reasons. Firstly, the Plainti’s counsel arrived late because he had an accident at Kitengela on his way to Kajiado Court on November 24, 2022. Secondly, the Plainti did not attend because her advocate advised her that he would be seeking directions that his application to le crucial evidence inadvertently omitted initially be heard rst. Her attendance in court would not be therefore necessary. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17830/eng@2023-05-30 1
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3. The motion is opposed by the rst and third Defendants. The rst Defendant’s accountant Samuel Mwangi has led a replying adavit dated January 20, 2023 in which he says, inter alia, that the case is over ten (10) years old and the Plainti and her advocate have demonstrated complete laxity and lack of interest in the case to the detriment of the third Defendant who cannot occupy her property for which she has a good title. 4. The third Defendant has sworn a replying adavit dated January 23, 2023 in which she deposes that the Plainti is delaying the quick conclusion of the suit because she enjoys interim orders to the detriment of the third Defendant. She is guilty of indolence and should not therefore be favoured with the court’s discretion. 5. Only the counsel for the third Defendant led written submissions on May 10, 2023. Other counsel did not le any such submissions even after the deadline of April 27, 2023. 6. I have carefully considered the Notice of Motion dated December 16, 2022 in its entirety including the adavits, the grounds, the annexures, the submissions on record and the law cited therein and the entire record. I nd that the motion has no merit for the following reasons. 7. Firstly, the hearing date of the main suit was taken by consent on February 16, 2022 which was more than nine months to the hearing date of November 24, 2022. A pretrial conference date was xed for June 7, 2022. The Plainti was allowed time to le the so called fresh evidence. 8. Secondly, on June 7, 2022, with no fresh evidence led, the court conrmed the case for hearing on November 24, 2022 in the presence of the Plainti’s counsel. It could not therefore be true to say that the case was coming for directions on the hearing of the application to adduce new evidence. That application had been allowed on February 16, 2022 and none was pending. 9. Thirdly, if the case was not coming for the hearing of the main suit, the Plainti’s counsel should have had the courtesy to inform the other counsel on record that he would be seeking to adjourn the case so that they and their clients did not have to travel all the way to Kajiado ready to be heard. It is pretty obvious that the Plainti and her counsel are not honest in their conduct of this court. 10. I know that it is a draconian move to lock out a party from being heard but this is a case whereby the Plainti has locked herself out by refusing to participate in the case for reasons best known to herself. I believe the rst and third Defendants when they say that she has everything to gain by the delay which is working to their detriment. 11. Article 159 (2) (b) of the Constitution of Kenya provides that justice shall not be delayed. Section 1A of the Civil Procedure Act provides that the overriding objective of the Act and the rules made there under is to facilitate the just, expeditious, proportionate and aordable resolution of disputes governed by the Act. The same objective is repeated in Section 3 of the Environment and Land Court Act. Section 1A (3) of the Civil Procedure Act provides that a party to civil proceedings or an advocate of such a party is under a duty to assist the court to further the overriding objective of the Act and to that eect, to participate in the processes of the court and to comply with the directions and orders of the court. 12. In this case, the Plainti and her advocate have done everything to delay the case, to disobey the court directions and orders and to frustrate the other parties. She is not deserving of any of the orders that she seeks in the application dated December 16, 2022 which I nd lacks merit. I dismiss it with costs to the Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17830/eng@2023-05-30 2
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DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 30TH DAY OF MAY, 2023. M.N. GICHERU JUDGE ........................................... https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17830/eng@2023-05-30 3
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