[2021] KEELC 4458 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO. 167 OF 2012

LOITA DEVELOPMENT LIMITED............................................ PLAINTIFF

VERSUS

1. JUMA MOHAMED KEKE

2. HAMISI DZILE HAMISI

3. KWALE DISTRICT LAND REGISTRAR

4. THE ATTORNEY GENERAL.............................................DEFENDANTS

RULING

1. On 1st April 2019, the plaintiff’s case was closed and the matter was fixed for defence hearing on 9th October, 2019. However, due to pressure of work on the part of the court, the matter was not heard on 9th October, 2019 and was rescheduled for defence hearing on 10th February, 2020 when the 2nd defendant testified and informed the court that the 1st defendant was unwell and in hospital. For that reason the matter was adjourned to 19th October, 2020 for further defence hearing. When the matter came up on 19th October, 2020, there was no appearance by the 1st and 2nd defendants as well as their advocates. The court ordered that the 1st and 2nd defendants’ case be closed and directed the parties to file and exchange written submissions. The 1st and 2nd defendants have now filed the application dated 26th October, 2020 seeking to set aside the orders and proceedings of 19th October, 2019 and re-open the case for further defence hearing.

2. The application is premised on the grounds that the defendants have always been desirous to litigate this matter to its logical conclusion and that on 19th October, 2019, Mr. Paul W. Magolo, the advocate on record for the 1st and 2nd defendant’s was present and tried to log into the teams virtual proceedings before trial court and stayed at the lobby waiting to be let in but only managed to be in after the matter had been called out. That the applicants stand to suffer loss and damage unless the orders and proceedings of 19th October, 2020 are set aside, adding that the respondent will not suffer any prejudice if the orders are granted. The application is supported by the affidavit of Paul W. Magolo sworn on 26th October, 202o in which he swore inter alia, that his failure to attend court virtually was not intentional.

3. The applicants counsel cited the provisions of Order 51 Rule 15 of the Civil Procedure Rules which gives the court power to set aside an order made ex-parte and relied on the case of Wachira Karani –v- Bildad Wachira (2016)eKLR. The Applicants also cited Article 25 and 50 of the Constitution and submitted that fair hearing requires that the defence be given an opportunity to present its case in its entirety just as the plaintiff was given. The applicants urged the court to allow the application.

4. In opposing the application, the plaintiff filed an affidavit in reply sworn by Ushwin Khanna Advocate on 3rd November, 2020 in which he stated inter alia, that no reasonable explanation has been given by the applicants for non-attendance on 19th October, 2020 when the matter was listed for hearing of the defence case. It was pointed out that the explanation given for non-attendance is not plausible in view of the fact that there were two firms namely J. O. Magolo & Company and Marende Necheza & Company Advocates who are jointly on record as acting for the 1st and 2nd defendants. That the 1st and 2nd respondents have sought adjournments on several occasions in the past. It is further stated that the statement of defence filed is contradictory to the contents of the witness statements filed and therefore is a sham and that the 1st defendants’ evidence will only be a repeat of the evidence already given by the 2nd defendant. The plaintiff’s counsel distinguished the case of Wachira Karani (supra) relied on by the applicants and submitted that the 1st and 2nd defendants have been given a fair hearing and an opportunity to be heard. That the 1st and 2nd defendants will not suffer any injustice or any hardship in view of the fact that the 2nd defendant has given evidence and that the 1st defendant can only but repeat the same evidence from the joint witness statement. It was submitted that the 1st and 2nd defendants only intend to delay the hearing of this case and that no good reason or ground has been shown to enable the court to exercise its discretion favourably towards that said defendants having regard to their past conduct. It was further submitted that in order for the court to exercise its discretion in favour of the said defendants, the said defendants must show that they have a reasonable defence to the plaintiff’s case. The plaintiff’s submission is that the said defendants have failed to disclose any or any reasonable defence, adding that the defence is a sham and contradictory to the defence evidence so far adduced. The plaintiff submitted that in the event this court is inclined to grant the orders as prayed in the application, the same should be conditional on an order for costs to be assessed by the court to be paid in full before the next hearing date and that no further adjournments shall be granted at the behest of the said defendants.

5. I have considered the application and the rival submissions. The 1st and 2nd defendants are asking the court to set aside the orders and proceedings of 19th October 2020 which closed the defence case and re-open the case for further defence hearing. Counsel for the 1st and 2nd defendants has explained that on the material day, he was present and tried to log into the virtual proceedings and stayed in the lobby but was only let in after the matter had been called out.

6. The jurisdiction to re-open a case and receive additional evidence in a trial court is discretionary one and is to be exercised judiciously. In exercising that discretion, the court is duty bound to ensure that the proposed re-opening of a party’s case does not embarrass or prejudice the opposite party. Secondly, where the proposed re-opening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. The plea for re-opening of a case will also be rejected if there is inordinate and unexplained delay on the part of the applicant in bringing the application. The applicant is also required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Further, the evidence must be such that if admitted it would probably have an important influence on the result to the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though need not be incontrovertible. (see Victoria Naitano Kiminta –v- Gladys Kiminta Prinsloo (2019)eKLR; Mohamed Abdi Mohamed –v- Ahmed Abdullahi Mohamed & Others (2018)eKLR; Samuel Kiti Lewa –v- Housing Finance Company Limited & Another (2015); and Ladd –v- Marshall (1954)3 ALL ER 745)

7. In the present case, the plaintiff closed their case on 1st April 2019. The 2nd defendant gave his evidence on 10th February, 2020 and informed the court that the 1st defendant was unwell and hospitalized. It was for that reason that the matter was adjourned to 19th October 2020 for further defence hearing but the defence case was closed when neither the 1st and 2nd defendants nor their advocates attended court. Now the 1st and 2nd defendants pray that their case be re-opened to allow the 1st defendant present his evidence. In my considered view, the explanation given for the non-attendance on 19th October 2020 is reasonable. Moreover, the court had earlier been informed that the 1st defendant was unwell and hospitalized. Further, the application herein was brought without unreasonable delay. I am also not persuaded that the plaintiff will suffer any prejudice if the application is allowed. This is because the plaintiff can still challenge the evidence to be presented by the 1st defendant through cross-examination.

8. Taking the foregoing into account, it is my view that the Notice of Motion dated 26th October 2020 meets the criteria for re-opening of a closed case. The upshot is that the application is allowed in the following terms:

a) The 1st and 2nd defendants’ case is re-opened and the 1st defendant is allowed to present his evidence.

b) Costs of the application are awarded to the plaintiff.

9. Orders accordingly.

DATED, SIGNED and DELIVERED at MOMBASA virtually due to COVID-19 Pandemic this 2nd day of February, 2021

____________

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant