[2019] KEELC 4464 (KLR)
The court found that the defendant failed to provide a satisfactory explanation for the absence of its witnesses at the scheduled hearing time, as they arrived at 10:00 a.m. instead of the required 8:30 a.m. However, considering the defendant is a public body and in the interest of justice, the court exercised its...
Source-derived case information.
- Citation
- [2019] KEELC 4464 (KLR)
- Parties
- Plaintiff: Josephine Wairimu Cherono (Suing as the administrator of the Estate of the late Chrono Kiplagat); Defendant: County Government of Uasin Gishu, Ministry of Lands, Housing and Physical Planning
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 155 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Proceedings and Reopen Defence Case
- Outcome
- Application allowed with conditions.
- Judges
- A Ombwayo
- Legal Topics
- Setting Aside Proceedings, Reopening Defence Case, Adjournment of Hearing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Josephine Wairimu Cherono (Suing as the administrator of the Estate of the late Chrono Kiplagat)
Plaintiff
County Government of Uasin Gishu, Ministry of Lands, Housing and Physical Planning
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Proceedings and Reopen Defence Case
Legal Issues
- 1 Whether the proceedings of 31.7.2018 should be set aside to allow the defendant to reopen its case and call witnesses.
- 2 Whether the defendant has provided sufficient explanation for the absence of its witnesses on the hearing date.
- 3 Whether the plaintiff is entitled to costs thrown away due to the adjournment.
Ratio Decidendi
The court found that the defendant failed to provide a satisfactory explanation for the absence of its witnesses at the scheduled hearing time, as they arrived at 10:00 a.m. instead of the required 8:30 a.m. However, considering the defendant is a public body and in the interest of justice, the court exercised its discretion to allow the application to set aside the proceedings and permit the defendant to reopen its case. This permission was granted on the strict condition that the defendant pays the plaintiff thrown away costs of Kshs. 20,000 before the hearing of the suit. The court emphasized that procedural rules must be observed, but justice may require flexibility, especially where...
Court Disposition
Application allowed with conditions.
Orders
- The proceedings of 31.7.2018 are set aside.
- The defendant is allowed to reopen its case and call witnesses for the defence.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 155 OF 2015
JOSEPHINE WAIRIMU CHERONO [Suing as the administrator of the Estate of
the late CHRONO KIPLAGAT..................................................................PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF UASIN GISHU, MINISTRY OF LANDS,
HOUSING AND PHYSICAL PLANNING....................................... DEFENDANT
RULING
The defendant/applicant has come to court praying that proceedings of 31. 7.2018 to be set aside and defendant be allowed to re-open its case and call witnesses for purposes of defence. The application is based on grounds that the application has a favourable defence. That the defence witness is the County Land Surveyor and would give clear direction as to the extent of the alleged encroachment. The explanation given by the defence is that they sought for time allocation but when they came to court at 10. 00 a.m., they found that their application for time allocation had been disallowed and the matter was to proceed immediately.
The plaintiff replies that the matter came up for hearing on 31. 7.2018 and that the defendant had not filed documents nor paid them any costs. When the matter came up for hearing, the defendant did not have witnesses and sought the matter to be heard at 2. 00 p.m. the court did not have an obligation to put the matter aside when there were no witnesses.
This court observes that when the matter came for hearing, the defendant’s witnesses were not present in court. No explanation was given for their absence. The defendant now explains that he came with his witnesses at 10. 00 a.m. and found the defense case had been closed. I do find that there is no explanation why the defendants came to court at 10. 00 a.m. when they were supposed to be in court at 8. 30 a.m.
However, the defendant being a public body, I would reluctantly allow the application and on condition that the defendant pays the plaintiff thrown away costs of Kshs. 20,000 before the hearing of the suit. Orders accordingly.
Dated and delivered at Eldoret this 21st day of February, 2019.
A. OMBWAYO
JUDGE