[2022] KEELC 265 (KLR)
The court found that the defendants' application for review was made promptly and that the circumstances described, including the alleged oversight of a pending application and the inability of the defendants to cross-examine the plaintiff, warranted the issuance of directions to ensure all parties are heard. The...
Source-derived case information.
- Citation
- [2022] KEELC 265 (KLR)
- Parties
- Plaintiff: Abdi Abkulla Tari; Defendant: IEBC Isiolo North Constituency Office Co-ordinator; Defendant: IEBC Isiolo County Co-ordinator; Defendant: The Chairman, IEBC
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review, Vary or Set Aside Proceedings
- Outcome
- Application for review admitted for hearing; directions issued for service and further mention.
- Legal Topics
- Review of Orders, Setting Aside Proceedings, Right to Be Heard, Cross Examination, Adjournment, Counterclaim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Abkulla Tari
Plaintiff
IEBC Isiolo North Constituency Office Co-ordinator
Defendant
IEBC Isiolo County Co-ordinator
Defendant
The Chairman, IEBC
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Review, Vary or Set Aside Proceedings
Legal Issues
- 1 Whether the proceedings of 21.03.2022 should be reviewed, varied or set aside due to alleged errors and oversight of the defendants' pending application.
- 2 Whether the defendants were denied the right to cross-examine the plaintiff and his witness.
- 3 Whether the overlooking of the defendants' application for amendment and counterclaim constitutes sufficient reason for review.
Ratio Decidendi
The court found that the defendants' application for review was made promptly and that the circumstances described, including the alleged oversight of a pending application and the inability of the defendants to cross-examine the plaintiff, warranted the issuance of directions to ensure all parties are heard. The court did not conclusively determine the merits of the application but issued procedural orders to serve the application and set a date for directions, thereby preserving the parties' rights to be heard and to have their applications determined on merit.
Court Disposition
Application for review admitted for hearing; directions issued for service and further mention.
Orders
- The applicant to serve the application upon all other parties within 14 days.
- All parties to attend court for directions on 9th May, 2022.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ISIOLO
ELC CASE NUMBER 12 OF 2021(FORMERLY MERU ELC 45 OF 2018)
ABDI ABKULLA TARI.............................................................PLAINTIFF/RESPONDENT
VERSUS
IEBC ISIOLO NORTH CONSTITUENCY
OFFICE CO-ORDINATOR..................................................1ST DEFENDANT/APPLICANT
IEBC ISIOLO COUNTY CO-ORDINATOR.....................2ND DEFENDANT/APPLICANT
THE CHAIRMAN, IEBC.....................................................3RD DEFENDANT/APPLICANT
RULING
1. This application is dated 4th April, 2022 and seeks the following orders:
1. THAT the honorable court be pleased to review, vary and/or set aside the proceedings had and taken on 21. 03. 2022 when the Plaintiff’s case was heard and closed.
2. THAT the defendant’s application dated 17/03/2022 be set down for hearing and determination on merits and/or that the directions be issued with respect to the said application.
3. THATfurther and in the alternative and without prejudice to the foregoing, the plaintiff’s case be re-opened, the plaintiff and his witness be recalled for cross-examination.
4. THAT the costs of this application be in the cause.
2. The application is supported by the affidavit of Advocate Charles Benedict Mwongela sworn on 4th April, 2022 and has the following grounds:-
a. On 07. 03. 2022 the honorable court granted the defendants the last adjournment but the counsel holding brief on that day gave redacted information to the defendant’s principal advocate.
b. On 21. 03. 2022, the honorable court proceeded with hearing and closure of the Plaintiff’s case and directed that the matter proceeds for defence hearing on 13. 06. 2022, despite the pendency of the defendants’ application dated 17. 03. 2022, filed and served on 18. 03. 2022 which fact of filing and service of application may not have been properly brought on the honourable court’s attention. Ruling delivered on 21. 03. 2022 rejecting the adjournment request partly reads that counsel holding brief for the defendants told the court that “…Mr. Mwongela was seeking adjournment because he intended to file a counterclaim”, which is patently incorrect.
c. Overlooking of the said defendant’s application whereupon the plaintiff’s case was heard and closed constitutes an error apparent on the face of the record and sufficient reason necessitating review, variation and/or setting aside of the proceedings had and taken 21. 03. 2022.
d. Counsel holding brief for the defendant’s advocate on 21. 03. 2022 was compelled to conduct a hearing without her file thereby impending and completely curtailing the defendants’ right to cross-examine the plaintiff/respondent and his witness.
e. Overlooking of the application seeking amendments and introduction of a counterclaim has greatly prejudiced the defendant’s primary claim and prayers in the suit.
f. The application has been preferred without undue delay, within fourteen (14) days of the orders/proceedings sought to be varied and/or set aside and more than two (2) months date given for defence hearing on 13. 06. 2022.
3. Having perused the application, I issue the following orders:
a) The Applicant to serve the application upon all other parties within 14 days of today.
b) All parties to come to court for directions on 9th May, 2022.
c) Cost shall be in the cause.
Delivered in Nairobi this 11th day of April, 2022 in the absence of the parties.
HON. JUSTICE P. M. NJOROGE
E & L COURT ISIOLO