[2018] KEELC 3280 (KLR)
The court found that the plaintiff's application to reopen her case was brought after an inordinate and unexplained delay, as the suit had been pending since 2009 and the application was filed without urgency despite the matter being part-heard. The court held that the plaintiff was conducting her case in a casual...
Source-derived case information.
- Citation
- [2018] KEELC 3280 (KLR)
- Parties
- Plaintiff: Emily Cherono Kiombe; Defendant: Jacob Kamoni Kari
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 222 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reopen Plaintiff's Case
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Reopening of Case, Discretion of Court, Inordinate Delay, Production of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Cherono Kiombe
Plaintiff
Jacob Kamoni Kari
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reopen Plaintiff's Case
Legal Issues
- 1 Whether the plaintiff should be granted leave to reopen her case to tender additional evidence.
- 2 Whether the delay in bringing the application to reopen the case was inordinate and unexplained.
- 3 Whether reopening the case would prejudice the defendant or amount to an abuse of court process.
Ratio Decidendi
The court found that the plaintiff's application to reopen her case was brought after an inordinate and unexplained delay, as the suit had been pending since 2009 and the application was filed without urgency despite the matter being part-heard. The court held that the plaintiff was conducting her case in a casual manner and appeared to be attempting to 'panel beat' her case while proceedings were ongoing, which would delay the expeditious determination of the matter. The court emphasized that its discretion to allow reopening must be exercised judiciously and not to the prejudice of the defendant. Since the delay was inordinate and the application appeared to be an attempt to fill gaps...
Court Disposition
application dismissed with costs
Orders
- The application to reopen the plaintiff's case is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 222 OF 2013
EMILY CHERONO KIOMBE……... PLAINTIFF
VERSUS
JACOB KAMONI KARI…………..DEFENDANT
RULING
The application before court is dated 23rd August, 2017. The plaintiff seeks to reopen his case claiming to have prematurely closed the same on 13. 3.2017 and therefore seeks leave to tender more evidence.
The application is based on grounds that the plaintiff testified and prematurely closed her case on the 13th March, 2017. That re-opening of the plaintiff’s case will assist the court in meeting its overriding objective as per section 1A of the Civil Procedure Act and that the counsel conducting the plaintiff case inadvertently closed the plaintiff’s case before producing all the documents and some of the documents were not in possession of the plaintiff during the hearing. The defendant will not be prejudiced since the defendant has not testified and he will have an opportunity to cross examine on the document to be produced.
The application is supported by the affidavit of Emily Cherono Kiombe who states that her advocate in conduct of the hearing closed her case prematurely without producing all the documents and that the reason was that all the time of the hearing, there were documents that were not in her possession but which are relevant to this case.
She prays that this Honourable court be pleased to re-open her case to produce the said documents. That she is being informed by her counsel whose information she believes to be true that the production of this document will assist this honourable court in achieving its overriding objective pursuant to section 1A of the Civil Procedure Act. That she is further being informed by her counsel whose advice she believes to be true that the respondent will not be prejudiced in any way since will have an opportunity to peruse the document and cross examine on the same.
She is also being informed that this current application is not an abuse of the court process since it will assist the court in making a just determination on this matter. That she makes this application with utmost good faith and without prejudice to the rights of the defendant to be heard.
The application is opposed by the defendant who states that the application has been made after inordinate delay. Moreover, that the application was dated 23. 8.2017, filed on 2. 11. 2017 and fixed for hearing on 14. 3.2018. The respondent states that the application is an affront to the principle of discovery and disclosure of documents. The suit was filed in the year 2009 and that the documents were all always in possession of the plaintiff.
I have considered the application and the replying affidavit and do find that there is inordinate delay in bringing this application to court. The plaintiff has already commenced testifying and therefore, any intent to file further lists of documents is made with inordinate delay. Moreover, the plaintiff is conducting her case rather casually as the application was filed without any urgency despite the fact that the matter was part-heard. The plaintiff appears to be intended to panel beat her case when the same is already proceeding and appears intent on delaying the expeditious proceedings in this matter.
It is trite law that 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 re-opening 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, such prayer for re-opening of the case will be defeated by in ordinate and unexplained delay.In this case there is inordinate delay.The application is not allowed and is dismissed with costs.
Dated and delivered at Eldoret this 15th day of May, 2018.
A. OMBWAYO
JUDGE