[2007] KEHC 344 (KLR)
The court held that the Attorney General, by actively participating in the proceedings for seven years without raising any objection to the venue or invoking Order 46, had effectively given the Government's consent by conduct. The absence of a written consent was not fatal in the circumstances, as the Government's...
Source-derived case information.
- Citation
- [2007] KEHC 344 (KLR)
- Parties
- Plaintiff: David Cheptum Sawe; Defendant: Jonah Kipsaina Cherotich; Defendant: Wilson Kimutai Cherop; Defendant: Kiprono Arap Toroitich; Defendant: The Hon. Attorney General; Defendant: Chief Land Registrar
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 10 of 2000
- Procedural Posture
- Civil Case / Interlocutory Ruling on Government Consent Under Order 46
- Outcome
- Application for Government consent under Order 46 rejected; proceedings to continue at Eldoret.
- Legal Topics
- Government Consent, Venue of Trial, Acquiescence by Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Cheptum Sawe
Plaintiff
Jonah Kipsaina Cherotich
Defendant
Wilson Kimutai Cherop
Defendant
Kiprono Arap Toroitich
Defendant
The Hon. Attorney General
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Civil Case / Interlocutory Ruling on Government Consent Under Order 46
Legal Issues
- 1 Whether the Government's written consent is required for the trial to proceed at Eldoret under Order 46 of the Civil Procedure Rules after seven years of active participation by the Attorney General.
- 2 Whether the Attorney General's conduct amounts to acquiescence and thus constitutes consent to the venue of trial.
Ratio Decidendi
The court held that the Attorney General, by actively participating in the proceedings for seven years without raising any objection to the venue or invoking Order 46, had effectively given the Government's consent by conduct. The absence of a written consent was not fatal in the circumstances, as the Government's acquiescence was clear from its conduct. To require fresh consent at this late stage would be unjust and would result in a miscarriage of justice, given the advanced stage of the trial and the resources already expended. The court therefore rejected the argument that further Government consent was necessary and allowed the proceedings to continue at Eldoret.
Court Disposition
Application for Government consent under Order 46 rejected; proceedings to continue at Eldoret.
Orders
- The notion that further Government consent is necessary is rejected.
- The trial shall continue at Eldoret as previously conducted.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case 10 of 2000
DAVID CHEPTUM SAWE …………....……....……………… PLAINTIFF
VERSUS
JONAH KIPSAINA CHEROTICH ……...…………… 1ST DEFENDANT
WILSON KIMUTAI CHEROP ……………...……….. 2ND DEFENDANT
KIPRONO ARAP TOROITICH …………………..…. 3RD DEFENDANT
THE HON. ATTORNEY GENERAL …………..……. 4TH DEFENDANT
CHIEF LAND REGISTRAR …………………………. 5TH DEFENDANT
R U L I N G
At the resumed hearing of this suit, Mr. Rotich for the 4th and 5th Defendants referred to the recently published Gazette Notices 299 and 300 by the Honourable Chief Justice and dated 19th January, 2006. Mr. Rotich stated that he wished to take instructions as to whether to grant the Attorney General’s consent as contemplated by Order 46 of the Civil Procedure Rules.
Gazette Notice No. 300 has directed that the Courts ensure compliance and enforcement of the provisions of Order 46 Civil Procedure Rules. This Court is bound by the provisions of Order 46 and the directions in Gazette Notice No. 300. I wish to point out that the provisions of Order 46 of the Civil Procedure Rules are not new and have been in existence since 1957 vide legal Notice No. 299 of 1957. The new Gazette Notice No. 300, Clause 5 in my view is a reminder by the Honourable Chief Justice that the said provisions ought to be enforced.
For the moment, I do not wish to make a finding in respect of all civil matters that are pending at Eldoret High Court Registry. I wish to restrict my decisions, comments and/.or observations to the matter before me.
This case was filed sometime in January, 2000. It is exactly seven (7) years old. It has been heard over the said period and the Defence has called 3 witnesses. The case is almost at an end. The Attorney General did not object to the trial taking place at Eldoret. They have participated in these proceedings throughout and there has been no objection or reference to Order 46.
In the event this Court enforces Order 46 in a blanket manner in respect of part-heard cases, many innocent litigants before this court will suffer great loss and injury in terms of loss of precious judicial time and expense.
The Attorney General on behalf of the Government in these proceedings actively has participated in these proceedings. While there is no written consent by the Government as to the place of trial, yet there has been “active acquiescence” by the Attorney General. I do hereby hold that the Attorney General has “given” the Government’s consent by conduct and by submitting to the jurisdiction of this court. No objection was raised in their Defence.
With respect, the Counsel for the Attorney General cannot now place this Court at the mercy of the Government. To accept that the trial of this case take place anywhere else would amount to a travesty and miscarriage of justice. This Court shall not allow that to happen.
I therefore reject the notion that the Government’s consent is again necessary. The Government gave its consent when it allowed the trial to take place at Eldoret and allowed it to proceed for seven (7) good years.
I will now give a date for further hearing.
DATED AND DELIVERED AT ELDORET ON THIS 7TH DAY OF FEBRUARY, 2007.
M. K. IBRAHIM
JUDGE