[2025] KELAT 158 (KLR)

Kithae v Tana Water Works Development Agency & another (Tribunal Case E042 of 2024) [2025] KELAT 158 (KLR) (10 March 2025) (Ruling)

Neutral citation: [2025] KELAT 158 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E042 of 2024

NM Orina, Chair

March 10, 2025

Between

James Muriungi Kithae

Complainant

and

Tana Water Works Development Agency

1st Respondent

National Land Commission

2nd Respondent

Ruling

1. The suit herein was instituted on 18th September 2024. The Complaint was thereafter served upon the Respondents as per the directions issued by this tribunal. Thereafter the responses were filed and directions taken on the disposal of the matter by way of documents and written submissions.

2. In between when the parties appeared before the tribunal, there were indications that the parties were attempting negotiations. The Respondents were also allowed more time to comply. Having failed to reach a resolution, the tribunal directed that each of the parties was going to take 14 days to file submissions together with authorities, starting with the Complainant. This was on 28th November 2024. A mention date for confirmation and to issue a judgment date was set for 13th January 2025.

3. It is noteworthy that at the point the final directions for filing of submissions were issued, the complaint was already outside the statutory timelines for resolution as provided under Section 133C (3) of the Land Act which requires a determination to be given within 60 days upon filing of a complaint. The tribunal had exercised its discretion to extend time for filing of the responses due to the ongoing negotiations between the parties at the time.

4. When the matter was mentioned on 13th January 2025, the Complainant’s counsel informed the tribunal that they had just filed submissions the previous day. The Respondents on their part asked the tribunal to dismiss the suit in its entirety for failure to comply with its directions. Upon considering the submissions of counsel, the tribunal dismissed the suit in limine and observed as follows:“The tribunal is guided by strict timelines which the complainant failed to observe without a valid reason. We do not have leeway to extend time any further because the Complainant’s advocate travelled outside the country.”

5. The tribunal further noted that this dismissal was “without prejudice” to the Complainant’s claim. In making this determination, the tribunal was aware that the client should not bear the consequences of his counsel’s default. The tribunal was guided in this regard by Ongom vs. Owota [2009] E.A. 356 where is was held as follows:Although it is an elementary principle of our legal system, that a litigant who is represented by an advocate, is bound by the acts and omissions of the advocate in the course of the representation, in applying that principle, courts must exercise care to avoid abuse of the system and or unjust or ridiculous results. A litigant ought not to bear the consequences of the advocates default, unless the litigant is privy to the default, or the default results from failure, on the part of the litigant, to give the advocate due instructions.

6. Upon the dismissal of the suit, the Complainant filed an application dated 14th January 2025 wherein the complainant seeks reinstatement of the suit. The application is based, chiefly, on the grounds that the tribunal had prior to the dismissal of the suit allowed the Respondents many chances to comply and even though the 60-day statutory timeline had lapsed, it was not at the Complainant’s fault. The Complainant further avers that the dismissal has the implications of continued violation of the Complainant’s rights. The Complainant further urges the tribunal to dispense justice without undue regard to technicalities.

7. The application is also supported by the affidavit of Ms. Rinya Kibiti sworn on the same date. Ms. Kibiti who is counsel for the Complainant reiterates the grounds relied upon in support of the application and states further that the failure to file submissions within the timelines set in court in her presence was occasioned by her travel outside the country and closure of her office for the Christmas holidays. It should be noted, however, that these matters were not brought to the attention of the tribunal when the directions were issued.

8. In response to the application to reinstate the suit, the 1st Respondent filed grounds of opposition dated 28th January 2025. The 1st Respondent opposes the application on grounds that the directions issued on 28th November 2025 were issued in the presence of the Complainant’s counsel who undertook to file the submissions within 14 days. The 1st Respondent avers that the Complainant filed the said submissions 46 days later and that the Complainant has not proffered a sufficient explanation for filing submissions outside the prescribed timelines.

9. Further, the 1st Respondent states that the Complainant stands to suffer no prejudice or injustice as the tribunal left open the possibility to file a fresh complaint.

10. Proceedings before the tribunal are guided by the provisions of Section 133C of the Land Act. Specifically, the law provides timelines within which matters have to be resolved once filed. Section 133C (3) in that regard requires the tribunal to resolve matters within a period of 60 days upon being filed. However, the tribunal has discretion pursuant to Section 133C (4) of the Land Act to “extend the time prescribed for doing any act”. This discretion is not unfettered but is premised on the existence of sufficient cause. The tribunal, therefore, has discretion to extend time for determination of matters filed before it and any directions issued in proceedings, if sufficient cause is shown.

11. Furthermore, in the absence of the tribunal’s own rules of procedure, we are guided by the provisions of Order 12 Rule 7 of the Civil Procedure Rules which provide courts with the discretion to reinstate a suit which has been dismissed for want of prosecution.

12. The Applicant has advanced four arguments in support of the application for reinstatement. First, the applicant argues that the tribunal has jurisdiction to reinstate the suit. Second, the Applicant argued that the right to be heard is an inalienable Constitutional right as enunciated under Article 48 of the Constitution of Kenya, 2010. Third, the Applicant contends that the delay in filing submissions does not amount to an inordinate delay. Finally, the Applicant argues that submissions are merely legal arguments of counsel without which the tribunal can render itself on the suit.

13. Our jurisdiction to extend time as well as to reinstate a suit is well established and does not need any further elaboration. We are satisfied that we are properly seized of the instant applicant and the same will be determined on merit.

14. The Applicant has advanced the argument that the tribunal is obligated to administer justice without undue regard to procedural technicalities in furtherance of Article 159(2)(d) of the Constitution. With due respect, we do not think this is what the framers of the constitution intended with this provision. An invitation to consider statutory provisions as inconsequential in the face of Article 159(2)(d) of the Constitution is anarchy, to say the least. The Applicant cannot slap down any procedural transgressions by reference to Article 159(2)(d).

15. Whereas we are cognizant of the drastic effects of dismissal of a suit for want of prosecution, a contextual background as laid out at the beginning is important. We are constrained by statutory provisions to hear and determine suits within a period of 60 days. In certain circumstances, Section 133C (4) allows the tribunal to extend the time for doing any act in proceedings before us if sufficient cause is shown. In this case, however, the Applicant has not bothered to show sufficient cause why such grace should be extended. Instead Article 159(2)(d) has been waved as a panacea. Parties cannot hide behind Article 159(2)(d) when they fail to comply with express procedural guidelines. We agree with the 1st Respondent’s submissions in this regard. In Abdul Aziz Juma v Nikisuhi Investment & 2 Others [2013] eKLR it was stated as follows:“Article 159 of the Constitution was never intended to override clear provisions of any statute unless such provisions of a statute are found and held to be unconstitutional…In my view Article 159 of the Constitution cannot be resorted to where there are clear and express provisions of the law…the courts have had to consider the application of Article 159(2)(d) and the courts have held that Article 159(2)(d) cannot be applied to do away with all rules of procedure but it is intended to ensure that adherence to strict rules of procedure does not lead to a miscarriage of justice.”

16. Further, in Equity Group Holdings Limited v Commissioner of Domestic Taxes (Civil Appeal E069 & E025 of 2020) [2021], the High Court had this to say:“Section 51 (11) of the TPA is couched in peremptory terms. Having correctly found that the decision was made after the expiry of 60 days, the TAT had no legal basis to proceed as it did and to invoke article 159(2) (d). First, there was no decision at all. The decision had ceased to exist by operation of the law. Second, the provisions of section 51 (11) (b) had kicked in. The Objection had by dint of the said provision been deemed as allowed. Third, the TAT had no discretion to either extend time or to entertain the matter further. Fourth, discretion follows the law and a tribunal cannot purport to exercise discretion in clear breach of the law. The TAT premised its decision on the provisions of Article 159 (2) (d) of the Constitution which requires courts to determine matters without undue regard to technicalities of procedure. On the face of a clear statutory dictate, I do not see how the TAT could term the express statutory edict as a matter of procedural technicality. This was a gross misapprehension of the law. Article 159 (2) (d) of the Constitution was not meant to oust express statutory provisions and to open a window for disregard of statutory requirements.”

17. It should also be noted that the doors of justice were not shut on the Applicant as alluded. Indeed, aware of the drastic consequences of dismissal, the tribunal left the door open for the Applicant to file the suit afresh. This ensured that the Applicant is not prejudiced by their counsel’s failure to adhere to the tribunal’s directions without sufficient cause.

18. The Applicant has also submitted that the delay in filing submissions was not inordinate. This argument is without merit as the delay of more than one month in filing submissions where the period for resolution of disputes is capped at 60 days is certainly inordinate.

19. Another limb of the Applicant’s arguments is to the effect that submissions are not pleadings per se and in any case the Applicant had already complied with filing all the necessary pleadings in the case and the tribunal would have considered the suit without the pleadings. In support of this argument, the Applicant makes reference to the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR where the Court stated:Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.

20. Whereas the Applicant’s submissions on the value of submissions is correct, with respect this line of argument distorts the context on at least two issues. First, a party cannot come later to argue that it was not necessary to file submissions when the said party was in court when directions were taken on filing of submissions. Second, and related to the first, the tribunal’s directions for the management of cases before it are meant to give effect to the need for the expeditious resolution of disputes filed before the tribunal in compliance with Section 133C(3) of the land Act. In other words, the timelines for filing of submissions go into the timelines within which disputes should be resolved and a failure by one party to file within the required timelines, especially the Applicant, has a ripple effect on disruption of the said timelines.

21. Finally, the Applicant has urged the tribunal to consider that even though the filing of submissions was not done within the timelines prescribed, the applicant had always complied with the directions of the tribunal. Indeed, this is true and the lapse by counsel in filing of submissions was an isolated incidence. Further, we do not find that the reinstatement of the suit prejudices the Respondents in any way. The Applicant has already filed the said submissions and what is remaining is for the Respondents to file their submissions. We are therefore convinced that even though counsel has not discharged the burden in showing sufficient cause why the tribunal should extend the time allocated for filing of submissions, we are considerate of the cost implications on the Applicant due to counsel’s mistake.

22. For those reasons, we hereby set aside the dismissal orders issued by this tribunal on 13th January 2025. The suit is hereby reinstated and the Applicant’s submissions shall be deemed to be duly filed. However, the 1st Respondent is awarded costs of this application and such costs shall be borne by the Applicant’s counsel.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH MARCH, 2025…………………………………Nabil M. Orina, Ph.DChairpersonBefore: -Mr. Chacha h/b for Ms. Kibiti for the Complainant/ApplicantMr. Githiri for the 1st RespondentMr. Osoro for the 2nd RespondentBuluma – C/A