[2021] KEELC 2957 (KLR)
The court found that the application to reopen the 1st defendant's case was brought after inordinate and unexplained delay, as the documents sought to be introduced were within the knowledge of the 1st defendant and his counsel since 2014 and 2015. The court further held that the 1st defendant had no locus standi to...
Source-derived case information.
- Citation
- [2021] KEELC 2957 (KLR)
- Parties
- Plaintiff: David Maina Kanyoro; Defendant: Nelson Karori Gathima; Defendant: Solomon Gathima; Defendant: Mahira Housing Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 848 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application to Reopen 1st Defendant's Case to Adduce Additional Evidence
- Outcome
- application dismissed with costs to the plaintiff/respondent
- Judges
- LC Komingoi
- Legal Topics
- Reopening of Case, Adduction of Additional Evidence, Locus Standi, Delay in Application, Prejudice to Opposite Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Maina Kanyoro
Plaintiff
Nelson Karori Gathima
Defendant
Solomon Gathima
Defendant
Mahira Housing Company Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Reopen 1st Defendant's Case to Adduce Additional Evidence
Legal Issues
- 1 Whether the court should exercise its discretion to reopen the 1st defendant's case to allow additional evidence.
- 2 Whether the 1st defendant has locus standi to produce a replying affidavit sworn by a deceased non-party.
- 3 Whether the application to reopen the case is defeated by inordinate and unexplained delay.
Ratio Decidendi
The court found that the application to reopen the 1st defendant's case was brought after inordinate and unexplained delay, as the documents sought to be introduced were within the knowledge of the 1st defendant and his counsel since 2014 and 2015. The court further held that the 1st defendant had no locus standi to produce a replying affidavit sworn by a deceased non-party, as such evidence could not be tested in cross-examination. Allowing the application would amount to filling gaps in the 1st defendant's evidence and would occasion injustice to the plaintiff, who had already closed his case. The court exercised its discretion against reopening the case and dismissed the application...
Court Disposition
application dismissed with costs to the plaintiff/respondent
Orders
- The application to reopen the 1st defendant's case is dismissed.
- Costs of the application are awarded to the plaintiff/respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 848 OF 2014
DAVID MAINA KANYORO...........................PLAINTIFF/RESPONDENT
VERSUS
NELSON KARORI GATHIMA................1ST DEFENDANT/APPLICANT
SOLOMON GATHIMA.................................................2ND DEFENDANT
MAHIRA HOUSING COMPANY LIMITED.................3RD DEFENDANT
RULING
1. This is the Notice of Motion dated 11th November 2020 brought under order 51 rule 1 of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure Act, the inherent jurisdiction of the court and all other enabling provisions of the law.
2. It seeks orders:-
a. Spent.
b. That the honourable court be pleased to reopen the 1st defendant’s case to enable the 1st defendant/applicant adduce additional evidence in terms of the list attached in this application.
c. That costs of the application be in the cause
3. The grounds are on the face of the application and are set out in paragraphs 1 to 12.
4. The application is supported by the affidavit of Nelson Karori Gathima, the 1st defendant/applicant herein sworn on the 11th November 2020 and a supplementary affidavit sworn on the 7th December 2020.
5. The application is opposed. There are grounds of opposition filed on behalf of the plaintiff dated 24th November 2020.
6. On the 16th December 2020 the court with the consent of the parties directed that the application be canvassed by way of written submissions. When the matter came up for mention on 10th February 2021 the defendants had not filed their submissions. There was no explanation. The court then reserved the matter for ruling on 10th June 2021. By the time of writing this ruling, the defendants had not filed their written submissions.
7. I have considered the notice of motion and the affidavits in support. I have considered the grounds of opposition, the written submissions filed on behalf of the plaintiff and the authorities cited. The issue for determination is whether this application is merited.
8. It is the 1st defendant’s case that he is now in possession of the death certificate of Peter Githuka who passed away on 26th February 2015. That the said Peter Githuka had sworn a replying affidavit in response to the plaintiff’s application for injunction. That the said Peter Githuka was then a director of the 3rd defendant. The 1st defendant wishes to reopen the case in order to produce the death certificate and the replying affidavit as part of his exhibits.
9. I note from the copy of the death certificate that the said Peter Githuka passed on, on 26th February 2015. This is about five years ago. The said Peter Githuka is not a party to these proceedings. How will the replying affidavit sworn by the said Peter Githuka be tested on cross examination. The 1st defendant has no locus standi to produce the replying affidavit as he is not the deponent. In the case of Samuel Kiti Lewa vs Housing Finance Co. Ltd & Another [2015] eKLR J Kasango stated as follows:-
“The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion the court should ensure that such reopening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence also if such prayer for re-opening of the case will be defeated by inordinate and unexplained delay”.
I am guided by the above authority in finding that the application in the instant case has been brought after inordinate delay. The 1st defendant’s case was closed on 1st October 2020. They sought time to put in written submissions. The documents sought to be introduced were within the knowledge of the 1st defendant and his counsel as far back as 2014 and 2015. This is an attempt by the 1st defendant to fill the gaps in his evidence.
Allowing this application will occasion injustice to the plaintiff who closed his case on 27th January 2020.
10. In conclusion, I am not convinced that the reopening of the case will benefit any party. I find no merit on this application and the same is dismissed with costs to the plaintiff/respondent.
It is so ordered.
Dated, signed and delivered in Nairobi on this 10th day of June 2021.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Thuku for the Plaintiff
Ms Tanui for Mr. Arusei for the Defendants
Phyllis - Court Assistant