[2018] KEELC 2573 (KLR)
The court found that the reasons advanced by the defendants' advocate for non-attendance—specifically, being unaware of a change in the court's schedule and being held up in the office—were sufficient to justify the exercise of judicial discretion in favour of the defendants. The court emphasized that denying the...
Source-derived case information.
- Citation
- [2018] KEELC 2573 (KLR)
- Parties
- Plaintiff: Daniel Kimeli Kiprono; Plaintiff: Julius Rono; Defendant: Hosea K. Kemboi; Defendant: Mathew Kemboi; Defendant: Ng’etich A. J. A. t/a Ronboy Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 420 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Re Open Defence Case and Set Aside Previous Orders
- Outcome
- application allowed
- Judges
- A Ombwayo
- Legal Topics
- Setting Aside Orders, Reopening Defence, Right to Fair Hearing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kimeli Kiprono
Plaintiff
Julius Rono
Plaintiff
Hosea K. Kemboi
Defendant
Mathew Kemboi
Defendant
Ng’etich A. J. A. t/a Ronboy Auctioneers
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Re Open Defence Case and Set Aside Previous Orders
Legal Issues
- 1 Whether the court should set aside its orders of 5.10.2017 closing the defence case.
- 2 Whether the defence case should be re-opened to allow the defendants to testify and call witnesses.
- 3 Whether the absence of the defendants' advocate constituted sufficient cause for non-attendance.
Ratio Decidendi
The court found that the reasons advanced by the defendants' advocate for non-attendance—specifically, being unaware of a change in the court's schedule and being held up in the office—were sufficient to justify the exercise of judicial discretion in favour of the defendants. The court emphasized that denying the defendants an opportunity to be heard due to their advocate's mistake would be unjust, especially where there was no evidence of deliberate delay or abuse of process. The overriding objective of ensuring a fair hearing and access to justice outweighed the respondent's objections, particularly as no prejudice was demonstrated. Consequently, the court set aside its previous orders...
Court Disposition
application allowed
Orders
- The defence case is re-opened to allow the defendants to testify and produce evidence and call witnesses.
- The orders of 5.10.2017 closing the defence case are set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 420 OF 2013
DANIEL KIMELI KIPRONO.....................................................1ST PLAINTIFF
JULIUS RONO...........................................................................2ND PLAINTIFF
VERSUS
HOSEA K. KEMBOI..............................................................1ST DEFENDANT
MATHEW KEMBOI..............................................................2ND DEFENDANT
NG’ETICH A. J. A. T/A RONBOY AUCTIONEERS.........3RD DEFENDANT
RULING
The defendant has come to court for an order that the defence case be re-opened to allow the defendant testify and produce his evidence and witnesses if any. That the orders of the court granted on 5. 10. 2017 be set aside. The application is based on grounds that on 5. 10. 2017, the applicants’ advocate was held up and therefore, could not be present in court for this case at the same time.
The applicant states that the application to re-open to defence case and set aside the orders given on 5. 10. 2017 will not prejudice the respondent herein and that the scales of justice demand that the applicant be accorded a fair hearing which includes the right to be heard before an impartial court. The applicant states that this court has discretion to set aside its orders given on 5. 10. 2017 and allow the applicant to defeat his case by testifying and producing evidence or call his witnesses if any. Last but not least, that there has been no delay in bringing this application before this honourable court and the defendant has an arguable case.
The application is supported by the affidavit of John Kipkoech Chebii an advocate of the High Court of Kenya who states that on 5. 10. 2017, he was held up in the office and therefore, could not come to court for this case at the same time. That he had intended to adjourn the matter on the ground that the 1st and 2nd defendants are not properly sued in the matter. He sent his legal assistant to communicate to the respondents’ advocate but found that the respondents’ advocate had already dealt with the matter.
He believes that the applicants/defendants have a good defence to this suit and should not be unheard due to mistake of counsel. The land belongs to Kipkemboi Busienei who died on 3. 3.2013.
Ann Halwenge Odwa, learned counsel for the respondent filed a replying affidavit and states that the defendants were duly served with a hearing notice for matter before the hearing date. On the date of hearing, she appeared before the Judge with her client but the defendant with his advocate were absent. The defence was closed and the matter was scheduled for highlighting. No reason for non-attendance has been given. The case has been pending in court since 2013 and the defendants had ample time to pursue the defence.
I have considered the application and do find that this is a matter that the court should exercise its discretion judiciously. I do not intend to deny the defendant access to the seat of justice as the reasons given by the defendants’ advocate for his failure to attend court for hearing at 8. 30 a.m. are understood by this court that is, he was not aware that the court had changed its mode of operation, thus from hearing suits after mentions and applications to hearing suits at 8. 30 am before mentions and applications and therefore, when the defence counsel came to court the suit had been dismissed.
The upshot of the above is that the defence case is hereby re-opened to allow the defendant testify and produce evidence and call witnesses. Orders accordingly.
Dated and delivered at Eldoret this 28th day of June, 2018.
A. OMBWAYO
JUDGE