[2025] KEELC 28 (KLR)

Karanja & another v Nabukwesi (Environment & Land Case E201 of 2022) [2025] KEELC 28 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 28 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E201 of 2022

JO Mboya, J

January 16, 2025

Between

Andrew Ndaba Karanja

1st Plaintiff

Lisa Kathambi Miriti

2nd Plaintiff

and

Ambassador Simon Nabukwesi

Defendant

Ruling

Introduction and Background: 1. The Applicants herein have approached the court vide the Notice of Motion application dated the 9th October 2024; brought pursuant to inter-alia the provisions of Section IA and IB of the Civil Procedure Act. Cap 21 and Order 12 Rule I and 7 of the Chval Procedure Rules. 2010; and in respect of which same has sought for the following reliefs [verbatim]:i.That the matter be heard Ex-Parte in the first instance.ii.That the Court be pleased to set aside and vary its Judgment issued on 23rd September 2024 that dismissed the Plaintiffs' suit for non-attendance.iii.That this Honourable Court set aside the Judgment pronounced on the 23rd September 2024. pending hearing and determination of this Application.iv.That the costs of this application be provided for.

2. The instant application is premised on the various grounds which have been highlighted at the foot thereon. In addition, the application is supported by the affidavit of Andrew Ndaba Karanja [deponent] sworn on even date.

3. Upon being served with the application beforehand, the Plaintiff/Respondent filed a Replying affidavit sworn on the 14th November 2024; and wherein the Respondent has averred that the application beforehand is predicated on deceit, dishonesty and misrepresentation of facts. In any event, it has been averred that the application beforehand constitutes an abuse of the due process of the court.

4. The instant application came for hearing on the 14th November 2024; and whereupon the advocates for the respective parties covenanted to canvass and ventilate same [application] by way of written submissions. To this end, the court proceeded to and circumscribed the timelines for the filing and exchange of written submissions.

5. Suffice it to state that the Applicant filed written submissions dated the 20th November 2024; whereas the Respondent filed written submissions dated the 9th December 2024. The two [2] sets of written submissions form part of the record of the court.

Parties’ Submissions: a. Applicants’ Submissions: 6. The Applicants herein filed written submissions dated the 20th November 2024; and wherein the Applicants have adopted the grounds at the foot of the application. Additionally, the Applicants have reiterated and highlighted the contents of the supporting affidavit sworn on the 9th of October 2024.

7. Furthermore, learned counsel for the Applicants has proceeded to and canvassed four [4] salient issues for consideration and determination by the court. Firstly, learned counsel for the Applicants has submitted that the Applicants herein were ready to proceed with the hearing on the 23rd September 2024. In any event, learned counsel for the Applicants has contended that the Applicants pointed out that same had two witnesses on even date.

8. In addition, learned counsel for the Applicants has submitted that owing to the fact that the Applicants were ready, same [learned counsel] sought for time allocation. In this regard, it has been contended that the court indeed directed that the instant matter shall proceed for hearing at 11 am.

9. Be that as it may, learned counsel for the Applicants has submitted that counsel was unaware that the hearings and in particular, the hearing of the instant matter, was to be conducted in open court. In this regard, learned counsel has submitted that same imagined that the hearing was to be conducted virtually and not otherwise.

10. Secondly, learned counsel for the Applicants has submitted that upon realizing that the matter was not being not conducted virtually same [learned counsel] made his way to open court. However, it has been posited that by the time learned counsel arrived in court the instant matter had already been dealt with and been dismissed for want of prosecution.

11. In the circumstances, learned counsel for the Applicants has submitted that the failure and/or neglect to attend court when the instant matter was called out and thereafter dismissed for non-attendance was informed by mistake and/or inadvertence on the part of counsel for the Applicants.

12. To this end, learned counsel for the Applicant has contended that the mistake and/or inadvertence beforehand ought not to be punished. On the contrary, it has been submitted that the mistake and/or inadvertence culminating into the dismissal of the suit is pardonable and excusable.

13. In support of the foregoing submissions, learned counsel for the Applicants has cited and referenced inter-alia the decision in the case of Philip Chemwolo & Another v Augustine Kubende [1986]eKLR, John Naashon Mwangi v Kenya Finance Bank Ltd [in liquidation] [2015]eKLR; Shah v Mbogo [1967] EA 116 and John Mukuha Mburu v Charlse Mwenga Mburu [2019]eKLR, respectively.

14. Thirdly, learned counsel for the Applicants has submitted that the Applicants herein have established and demonstrated the existence of a sufficient cause to warrant the exercise of equitable discretion in their [Applicants’] favour.

15. As pertain to the foregoing contention that the Applicant has established sufficient cause, learned counsel for the Applicants has submitted that the Applicants believed that the matter was to proceed virtually. In any event, it has been contended that the belief by the Applicants herein was informed by the Supreme Court [General] Practice Directions 2020, which are reported to stipulate that the court may conduct virtual hearing[s] through usage of appropriate technology.

16. Furthermore, learned counsel for the Applicant has cited and referenced the decision in the case of Wachira Karani v Bildad Wachira [2016]eKLR, wherein the court defined and elaborated on the meaning of what constitutes sufficient cause.

17. Finally, learned counsel for the Applicants has submitted that the dismissal of the Applicant’s suit on the basis of non-attendance constitutes a violation of the Applicants’ right to fair hearing. In this regard, learned counsel for the Applicants’ cited and referenced the provisions of Article 50 of the Constitution 2010.

18. In view of the foregoing, learned counsel for the Applicants’ has submitted that a failure to set aside the impugned orders, shall be tantamount to driving away the Applicants from the seat of justice. In this regard, it has been posited that such an endeavour would not only be inimical to the rule of law, but also shall be tantamount to violation of the Applicants fundamental rights and freedoms.

19. Arising from the foregoing submissions, learned counsel for the Applicants has impressed upon the court to find and hold that the application beforehand is meritorious and thus same [application] ought to be allowed. For good measure, counsel has implored the court to allow the application and reinstate the suit for hearing and determination on merit.

b. Respondent’s Submissions: 20. The Respondent filed written submissions dated the 9th December 2024; and wherein same [Respondent] has reiterated the contents of the Replying affidavit sworn on the 14th November 2024. In addition, the Respondent has highlighted four [4] salient issues for consideration by the court.

21. First and foremost, learned counsel for the Respondent has submitted that the Applicants herein are not candid and truthful with the court. In particular, it has been posited that the Applicant’s counsel was present on the court virtual platform when the court issued directions pertaining to the hearing on the 23rd September 2024.

22. In particular, it has been submitted that the directions were given by the court in the presence of both counsel for the respective parties. To this end, learned counsel for the Respondent has posited that arising from the directions of the court same [learned counsel] attended open court and was present when the subject matter was called out and ultimately disposed of.

23. Additionally, learned counsel for the Respondent has submitted that the contention that there was a confusion pertaining to the place of hearing is a creation of counsel for the Applicant. Nevertheless and for good measure, counsel for the Respondent has posited that the Applicants herein are being deceitful and dishonest with the court and in this respect, same [ Applicants’] should not benefit from equitable discretion.

24. Premised on the foregoing submissions, learned counsel for the Respondent has submitted that where the reasons being advanced to underpin the exercise of equitable decision is wrought with mala fide and dishonesty, then the court ought to decline any invitation to exercise discretion in favour of the Applicant.

25. Put differently, learned counsel for the Respondent has submitted that the Applicants have not established the existence of a sufficient cause insofar as the reasons being proffered are laced with deceit and dishonesty.

26. To support the submissions that sufficient cause must be underpinned by honesty and bona fides, and not otherwise, learned counsel for the Respondent has cited and referenced the holding in the case of Lelei & 2 Others v Kimetu & 30 others ELC Case No. 143 of 2017 [2024] KEELC 1220 KLR.

27. Secondly, learned counsel for the Respondent has submitted that following the dismissal of the Applicant’s suit, the court is now functus officio. In this regard, learned counsel for the Respondent has contended that the court is thus divested of the requisite jurisdiction to revisit the subject matter.

28. To buttress the submissions touching on and concerning the doctrine of functus officio, learned counsel for the Respondent has cited and referenced inter-alia the decision in the case of Raila Amolo Odinga & Others v IEBC & Others [2013]eKLR and Telkom Kenya Ltd vs John Ochanda [Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya ltd] [2014]eKLR, respectively.

29. Thirdly, learned counsel for the Respondent has submitted that the Respondent herein shall be exposed to suffer undue prejudice if the subject application was allowed and the suit reinstated. In particular, it has been contended that the suit beforehand has been in court for close to three years and its reinstatement shall expose the Respondent to further anxiety and expenses.

30. Further and at any rate, learned counsel for the Respondent has submitted that it was incumbent upon the Applicants to exercise due diligence and to prosecute the suit without undue delay. Nevertheless, it has been posited that the Applicants herein were less than diligent and hence their conduct does not merit the exercise of discretion.

31. Finally, learned counsel for the Respondent has submitted that the Supreme Court [General Practice] Directions which have been highlighted and referenced by the Applicants do not apply to the Environment and Land court. In any event, it has been posited that the invocation and reliance on the Supreme Court Practice Directions is yet another endeavour by learned counsel for the Applicants to mislead the court.

32. In a nutshell, learned counsel for the Respondent has submitted that the application beforehand is informed by deceit, dishonesty and misrepresentation of facts. In this regard, it has been contended that a party seeking to partake of equity must approach the seat of justice with honesty and candour.

33. Flowing from the foregoing, learned counsel for the Respondent has therefore invited the court to find and hold that the application beforehand is misconceived and otherwise constitutes an abuse of the due process of the court. To this end, the court has been invited to dismiss the application with costs to the Respondent.

Issue for Determination: 34. From the contents of the application; the supporting affidavit thereto and the Replying affidavit in opposition thereto, and having taken into consideration the written submissions filed on behalf of the respective parties, the following issues do crystalize [arise] and are thus worthy of determination;i.Whether the Applicants have established and demonstrated sufficient cause to underpin the failure to attend court on the scheduled date/ time or otherwise.ii.Whether the dismissal of the Applicants’ suit for non-attendance constitutes a violation of the Applicants’ right to fair hearing or otherwise.

Analysis and determination Issue Number 1 Whether the Applicants have established and demonstrated sufficient cause to underpin the failure to attend court on the scheduled date or otherwise. 35. There is no gainsaying that the instant suit was fixed/scheduled for hearing on the 23rd September 2024. Furthermore, it is common ground that when the matter was called out during the call over, both advocates were present before the court via the Court’s e-platform.

36. Additionally, it is worth pointing out that during the virtual call-over, the advocate for the Plaintiffs intimated to the court that same shall be ready to proceed with two witnesses and thereafter, same shall seek for an adjournment. To this end, learned counsel for the Applicants sought for time allocation.

37. On the other hand, learned counsel for the Respondent also intimated to court that same was equally ready to proceed. However, learned counsel for the Respondent added that even though same [counsel] was ready to proceed, the Respondent was not available.

38. Having heard the representations/submissions by the Advocates for the respective parties, the court proceeded to and proclaimed the directions concerning the hearing of the matter.

39. In particular, the court proceeded and directed as hereunder;i.The hearing of the suit shall proceed at 11:00 Oçlock in open court Number 25. ii.The parties are hereby advised to observe timelines.iii.Costs shall be in the cause.

40. Suffice it to underscore that the orders and directions [details in terms of the preceding paragraph] were issued and disseminated to the advocates for the parties. To this end, there is no gainsaying that the advocates for the parties understood the import and tenor of the directions of the court.

41. First forward, the court later on proceeded to open court and commenced the hearing[s]. Nevertheless, when the instant matter was called out, only the learned counsel for the Respondent was present. Nevertheless, and in an endeavour to accommodate counsel for the Applicants, the matter was placed aside and thereafter called out at 12;10 pm. For good measure, only learned counsel for the Respondent was present in court.

42. After ascertaining from counsel for the Respondent whether the Respondent was admitting any portion of the Applicants claim and upon the intimation that the Respondent was not admitting any portion of the Applicants claim, the court proceeded to and made the following orders;i.The suit herein has been called out three times and despite same being called out both inside and outside of the court, neither the Plaintiffs nor their counsel is present.ii.Consequently and on the basis of the absence of the Plaintiffs and counsel; the matter be and is hereby dismissed for want of prosecution in accordance with the provisions of Order 12 Rule 3 of the Civil Procedure Rules 2010. iii.Costs of the suit be and are hereby awarded to the Defendant and the same to agreed upon and in default same to be taxed by the deputy registrar in usual manner.

43. The foregoing background represents the totality of what transpired in court on the 23rd September 2024 and which is relevant to the current application.

44. Be that as it may, the Applicants have now approached the court and same have now contended that when the matter was called out during the virtual platform, the court did not intimate and signify whether the hearing was to proceed virtually or physically in open court. To this end, the Applicants and their counsel have thereafter posited that because there was no indication as to whether the matter would proceed virtually or physically in open court, same [Applicants and counsel] remained on the virtual platform.

45. Additionally, it has been contended that the Applicants and their counsel were unaware that the hearing was proceeding in open court. However, when counsel for the Applicants ascertained that the matter was to be heard in open court same [sic] rushed to court only to find that the suit had been dismissed.

46. From the deposition anchoring the application, what is apparent and evident is a contention that the court did not signify whether the hearing was to be carried out virtually or physically in open court.

47. Notwithstanding the position taken by learned counsel for the Applicants and the Applicants, learned counsel for the Respondent has clearly posited that same [learned counsel for the Respondent] was privy to the directions of the court and more particularly, the directions that the hearing was to proceed in open court.

48. Furthermore, learned counsel for the Respondent has posited that arising from the directions of the court which were issued during the virtual call-over, same [learned counsel for the Respondent] attended court when the matter was ultimately disposed off.

49. Other than the foregoing, learned counsel for the Respondent has submitted that the purported confusion which has been adverted to and highlighted by learned counsel for the Applicants, is a creation of the Applicants and their counsel. At any rate, it has been posited that the Applicants and their counsel are being dishonest with the court.

50. Having taken into account the record of the court and upon consideration of the rival submissions by the parties, it is now apposite to discern whether the Applicants herein have established sufficient cause to warrant the intervention of the court.

51. To start with, there is no gainsaying that any party, the Applicants not excepted, who are desirous to partake of and benefit from the equitable discretion of the court must be truthful, honest and candid. For good measure, such an Applicant must not indulge in deceit, dishonesty and intentional misrepresentation of facts.

52. Secondly, it is also important to underscore that an Applicant desirous to invoke and benefit from equity must also be prepared to do equity. At any rate, equity frowns upon a person who approaches equity albeit with unclean hands.

53. Thirdly, where the discretion of the court is being sought, it is incumbent upon the Applicant to lay before the court all the facts including those facts that may be adverse and hostile to the interest of the Applicants.

54. Taking into the account the foregoing analysis, the question that this court must grapple with is whether the Applicants herein have genuinely placed before the court the reasons as to why same [Applicants] did not attend the scheduled hearing in the manner captured in the record of the court.

55. To my mind, the Applicants herein have not offered or proffered any plausible or cogent reasons. To the contrary, the Applicant herein have indulged themselves in deceit, dishonesty and intentional manipulation of facts, in an endeavour to defraud the cause of justice.

56. I am afraid that the deposition by the Applicants and which is being deployed to attract the discretion of the court are misleading and perjurious. Suffice it to underscore that where the explanation and or reasons being relied upon leave doubt in the mind of the court as to its bona fides, then the court must decline to exercise its discretion in favour of the deceitful Applicants.

57. I beg to state that sufficient cause can only be shown and demonstrated where the Applicant is truthful and honest with the court. On the contrary, sufficient cause is defeated and negated by dishonesty and lack of candour.

58. As to what constitutes sufficient cause, it suffices to cite and reference the case of The Hon. Attorney General v The Law Society of Kenya & another – Civil Appeal (Application) No. 133 of 2011; wherein the Court of Appeal observed and stated as follows:“Sufficient cause or good cause in law means:-‘The burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused.’ See Black’s Law Dictionary, 9th Edition, page 251. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.”

59. The necessity to proffer and espouse plausible reasons in an endeavour to procure discretion of the court was also highlighted in the case of Njoroge v Kimani (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling); where the Court of Appeal [ per Mativo, JA] stated thus:12. In order to exercise its discretion whether or not to grant condonation, the court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. An unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success. Condonation cannot be had for the mere asking. An applicant is required to make out a case entitling him to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.13. Equally important is that an application for condonation must be filed without delay and/or as soon as an applicant becomes aware of the need to do so. Thus, where the applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the court may take a dim view, absent a proper and satisfactory explanation for the further delays.

60. Arising from the foregoing analysis, I come to the conclusion that the Applicants herein have neither established nor demonstrated sufficient cause. On the contrary, the Applicants and their learned counsel seem to have been keen on deploying deceit and dishonesty in an endeavour to partake of equitable discretion, which is not only unacceptable but must be frowned upon.

Issue Number 2 Whether the dismissal of the Applicants’ suit for non-attendance constitutes a violation of the Applicants’ right to fair hearing or otherwise. 61. The Applicants have also submitted that the dismissal of the suit herein would deny the Applicants their constitutional right to fair hearing. To this end, the Applicants have cited and referenced the provisions of Article 50[1] of the Constitution 2010.

62. I beg to point out and underscore that both the Applicants and by extension the Respondent are entitled to partake of and enjoy the right to fair hearing and fair trial. Nevertheless, there is no gainsaying that the right to fair hearing does not entail an obligation that a party must be forced to attend and participate in the hearing and/or trial.

63. On the contrary, the import and tenor of the right to fair hearing; fair trial; due process of the law and natural justice envisage that every party, the Applicants not excepted, shall be afforded reasonable notice and reasonable opportunity to attend and participate in the hearing of own case.

64. Nevertheless, as to whether or not a party, the Applicants not excepted, choose to appropriate the right to fair hearing or fair trial is another matter. However, once a court of law is satisfied that a party has been afforded due notice and reasonable opportunity to be heard but same [party] fails to appropriate the right to be heard, then the court is at liberty to make such decisions as may be just, mete and expedient.

65. To my mind, a party who has been afforded the latitude and altitude to partake of the right to fair hearing, but spurned the opportunity to appropriate the right cannot be heard to contend that same has been denied the right to fair hearing. To my mind, such a contention would not only be illogical but contrary to the clear tenets of the rule of law.

66. Finally, and before departing from this issue, it is apposite to cite and reference the decision of the Court of Appeal in the case of Union Insurance Co. of Kenya Ltd vs Ramzan Abdul Dhanji Civil Application No.179 of 1998 [Unreported], where the Court stated thus:“The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it”.

67. In a nutshell, my answer to issue number two [2] is to the effect that the Applicants herein were accorded due notice and reasonable opportunity to be heard. However, for reasons only known to them [Applicants] chose not to appropriate the opportunity.

68. To my mind, the blame attendant to the failure and neglect to partake of the right to fair hearing lies elsewhere other than at the doorsteps of the court.

Final Disposition: 69. Flowing from the analysis [details enumerated in the body of the ruling] it must have become crystal clear that the application beforehand is underpinned by deceit and dishonesty; and thus same [ Application] is not merited.

70. Furthermore, it is also instructive to underscore that the discretion of the court to set aside an Ex-parte judgment or default order is unfettered. However, in pursuit of exercise of courts discretion, a party must display candour and approach the seat of justice with honesty and not otherwise.

71. Having made the foregoing remarks, the final orders that commend themselves to the Court are as hereunder:i.The Application dated the October 9, 2024, be and is hereby dismissed.ii.Costs of the Application be and are hereby awarded to the Respondent.iii.For coherence, the costs in terms of clause [ii] shall be taxed in the conventional manner.

72. It is so ordered.

DATED, SIGNED AND DELIVERED ON THE 16TH DAY OF JANUARY 2025. OGUTTU MBOYAJUDGE.In the presence of:Benson – Court Assistant.Mr. Mwangi h/b for Mr. Agimba for the Plaintiffs/ApplicantsMr. Okello h/b for Ms. Anyango Opiyo for the Defendant/Respondent