https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4975

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KAPSABET** **ELCLC NO. 1 OF 2024** **ELIZABETH JEPKEMBOI LELEI……………………PLAINTIFF/APPLICANT** **VERSUS** **MILKA JEROP KIMETO……………………DEFENDANT/RESPONDENT** **RULING** 1. This ruling is in respect of the Notice of Motion Application dated 17th June 2026 by the Plaintiff/applicant through the law firm of Kipkosgey & Company Advocates seeking the following orders: 2. This Honourable court be pleased to review/set aside its directions issued on 20th May 2026. 3. This Honourable Court be pleased to direct that the application dated 4/3/2026 do proceed by way of Viva Voce evidence. 4. Costs of this application be provided for. 5. To support his Application, the Applicant relied on eight grounds which include: 6. The nature of the issues in controversy is the status of the suit land when this Honourable court issued status quo orders on 7/4/2025 and orders of injunction on 9/3/2026. 7. The said status of the said suit land can only be well determined by Viva Voce evidence and production of evidence which can be subjected to security vide cross examination to ascertain its veracity. 8. Parties herein are holding two contradicting positions on status of the suit land at the time of issuance of the court orders, it will therefore be in the interest of Justice that independent parties that is, chief are called to assist the court in determining the issue. 9. The Respondent through Rotich, Langat and Company Advocates opposed the Application by a Replying Affidavit dated 30th June 2026 and stated in part; 10. That the application is an afterthought and otherwise an abuse of this Honourable Court’s process, time and resources for being vexatious and frivolous. 11. That the Applicant has always found mischievous ways of delaying this case by filing multiple applications in order to avoid the main suit being heard since the genesis of this suit in 2024; which applications are always withdrawn or dismissed including the application dated 21/01/2025 disallowed on 07/04/2025 prompting the filing of the application dated 05/05/2025 withdrawn on 28/05/2025. 12. That the Applicant has filed the application dated 17/06/2026 with a view of abusing this Honourable Court’s power to help her achieve the goal of buying time to avoid hearing of the main suit. 13. That in the interest of time and justice, I pray that the application dated 17/06/2026 and 04/03/2026 be dismissed with costs to me and in lieu therefore, this Honourable Court be pleased to fix this case for hearing of the main suit. 14. Additionally, the Respondent filed her Grounds of Opposition dated 30th June 2026, inter alia: 15. That the Application is frivolous and vexatious since the Applicant previously filed an Application dated 21st January 2025 before this Court seeking a similar order which application was dismissed vide ruling dated 7th April 2025. 16. That the Application has been made in bad faith since the Applicant is seeking mandatory injunctive orders through an interlocutory application before the main suit is heard and determined. 17. On 1st July 2026, the Court directed that the application be heard by way of written submissions further to **Order 51 Rule 16 of the Civil Procedure Rules 2010.** 18. In the submissions dated 7th July 2026, learned counsel for the applicant argued that they were not present on the 20th May 2026 when the Court gave directions on the Application that the nature of the Application dictates cross examination of the Defendant/Respondent. That the orders sought orders sought in the application pertain to contempt of court and/or committing her to civil jail. That the Court has the discretion to order for viva voce evidence in cases where there are disputed facts which require cross examination. 19. The Respondent/Defendant’s counsel filed submissions dated 14th July 2026 taking the standpoint that the Plaintiff/Applicant has been repeatedly filing different applications with a view of delaying the hearing and determination of the suit. They implored this Court not to allow the application because it was in bad taste and a waste of this Court’s time. Reliance was made on the case of Kenya Airline Pilots Association vs. Co-operative Bank of Kenya Ltd & Anor (2020) eKLR on the importance of maintaining status quo herein. 20. In the foregone, the main issue for consideration is whether this Court should review its directions issued on 20th May 2026 and allow for the hearing of the Application dated 4th March 2026 by way of viva voce evidence. 21. It is notable that the Applicant filed the application seeking, among other orders, citing the Defendant/Respondent for contempt of court. The Application came up for mention on 20th May 2026 for directions and Ms. Barno appeared for the Defendant but there was no appearance for the Plaintiff. The Defendant’s advocate confirmed having responded to the Application and proposed to have the application be heard by way of written submissions. Thus the court gave the following directions: 22. That the Notice of Motion application dated 4th March 2026 be heard by way of written submissions. The Applicant/Plaintiff to file and serve their written submissions within 14 days from this date. 23. The Respondent/Defendant to file and serve their written submissions within 14 days upon service by the Applicants. 24. Notice of motion application dated 4th March 2026 fixed for 1st July 2026 for further directions. 25. **Order 51 Rule 16 (supra)** allows the Court to exercise the discretion to determine whether to hear a matter orally or by way of written submissions. Depending on the nature of the application and the complexity of issues, the Court is mandated to give the appropriate directions. As the Court exercises the said discretion, it is required to do so in a manner that contributes to realization of substantive justice. **Sections 3 and 3A of the Civil Procedure Act, Cap 21 laws of Kenya** provides for the inherent power of Court to make orders as may be necessary for the ends of justice to be met. Also, **Section 3 of the Environment and Land Court Act** provides for the Overriding Objective to enable the Court to facilitate the just, expeditious, proportionate and accessible resolution of disputes. 26. Additionally, **Article 159 (2) (b) of the Constitution of Kenya 2010** provides that in exercising judicial authority, the courts and tribunals shall be guided by several principles, among them, that justice shall not be delayed. The Respondent/Defendant contends in the Replying Affidavit and the submissions that the Application herein is an attempt to delay justice and that the Applicant is fond of filing applications which have derailed the hearing and final determination of the case. 27. On the other hand, the Applicant stated that the application has complex issues touching on disobedience of court orders by the Respondent. That therefore, the need to cross examine the Respondent in order to sufficiently ventilate the issues in the Application. 28. The Application rests on the shoulders of the right to fair hearing under Article 50 (1) of the Constitution of Kenya 2010. Under Article 25 (c) of the same Constitution, the right to fair trial cannot be limited in any circumstances. 29. In the case of **Musila v Thengi & 2 others (Civil Appeal 607 of 2019) [2025] KECA 750 (KLR),** the Court of Appeal stated as follows: *“The right to a fair hearing entail notifying all parties of the hearing date, allowing each party to be heard, and permitting cross-examination of their opponents and witnesses.”* 1. Further, the Court of Appeal in the case of **James Kanyita Nderitu v Marios Ghikas & Anor (2016) e**KLR, established that an irregularly entered default judgment must be set aside *ex debito justitiae* (as a matter of right) without the court needing to weigh discretionary factors like triable issues or delay. That the right to fair hearing is fundamental and permeates our entire justice system. 2. To that end, it is the finding of this Court that the directions which were given in the absence of the applicant which tend to limit his right to fair trial. That the Applicant’s intended cross-examination of the respondent forms part of the right to fair hearing because it would bring out all the issues in the matter. The orders sought in the application are quasi-criminal in character which require the requisite proof. This Court is clothed with the discretion to allow the application to be heard by viva voce evidence. 3. A fortiori, the application dated 17th June 2026, is merited and hereby makes the following orders: 4. The application is allowed in terms of the principal prayers for review/setting aside the court’s directions issued on 20th May 2026 and that the application dated 4/3/2026 do proceed by way of Viva Voce evidence as set out in paragraph 1 (a) and (b) hereinabove respectively. 5. Each party to bear their own costs. 6. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **28th day of July 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. Moses Rotich learned counsel for the defendant/respondent 2. No appearance for the plaintiff/applicant 3. Walter and Emmaculate, Court assistants