[2022] KEELC 15614 (KLR)
The court found that the defendant had been given ample opportunity to participate in the proceedings, including being granted a last adjournment and having counsel on record, but failed to file a defence or attend the hearing. The ruling of June 14, 2022, which allowed the case to proceed as undefended, was not...
Source-derived case information.
- Citation
- [2022] KEELC 15614 (KLR)
- Parties
- Plaintiff: James Oduor Wanyande; Defendant: Maurice Ombiro Oduor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 224 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Application to File Defence and Recall Witnesses After Plaintiff Closed Case
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- LN Mbugua
- Legal Topics
- Late Filing of Defence, Recall of Witnesses, Right to Be Heard, Case Management, Estoppel, 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
James Oduor Wanyande
Plaintiff
Maurice Ombiro Oduor
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to File Defence and Recall Witnesses After Plaintiff Closed Case
Legal Issues
- 1 Whether the defendant should be allowed to file an amended defence and list of documents after the plaintiff has closed their case.
- 2 Whether the defendant should be allowed to recall witnesses at this stage of the trial.
- 3 Whether the defendant's failure to participate earlier precludes him from further participation.
Ratio Decidendi
The court found that the defendant had been given ample opportunity to participate in the proceedings, including being granted a last adjournment and having counsel on record, but failed to file a defence or attend the hearing. The ruling of June 14, 2022, which allowed the case to proceed as undefended, was not challenged by appeal or review, and the defendant is estopped from raising the same issues again. The responsibility to prosecute a case lies with the litigant, not the advocate, and the defendant's repeated failures and delays do not warrant the court's discretion to allow late filing of a defence or recall of witnesses. The application was therefore dismissed with costs to the...
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated August 5, 2022 is dismissed.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
Wanyande v Oduor (Environment & Land Case 224 of 2017) [2022] KEELC 15614 (KLR) (7 December 2022) (Ruling)
Neutral citation: [2022] KEELC 15614 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 224 of 2017
LN Mbugua, J
December 7, 2022
Between
James Oduor Wanyande
Plaintiff
and
Maurice Ombiro Oduor
Defendant
Ruling
1. Before me is an application dated August 5, 2022 where the defendant seeks orders that the amended defence and list of documents be deemed as duly filed and that the witnesses be recalled. The applicant contends that the previous advocate on record did not file a defence and list of documents thus in the interest of justice the defendant should be accorded the right to file a defence.
2. The plaintiff has opposed the application via his replying affidavit dated October 4, 2022 where he avers that the applicant is using delaying tactics to defeat justice and he is doing this by changing advocates now and then, adding that the applicant was all along seeking adjournments to file documents but he never filed any.
3. I have considered all the arguments raised herein. On June 14, 2022, this court gave directions for the plaintiffs case to proceed as an undefended claim of which the plaintiff testified and closed their case. The issue falling for determination is whether the defendant should be allowed to defend the suit at this stage of the trial.
4. In considering whether the defendant’s application should be allowed, the court has taken into account that “Justice is Justice to both the plaintiff and the defendant; so both parties to the suit should be considered”. See James Yanga Yeswa v Bob Margan Services Limited [2019] eKLR.
5. I find that the reasons as to why the court directed the case to proceed undefended on June 14, 2022 are well captured in a ruling delivered on that same day. In summary, the gist of that ruling was that the defendant was absent on the day of hearing, that no defence was ever filed despite there being a counsel on record for defendant and that defence side had been granted a Last Adjournment a year earlier on June 24, 2021.
6. The said ruling of June 14, 2022 has not been challenged by way of an appeal or a review. The applicant is therefore estopped from re-litigating on the same same issues which were raised on June 14, 2022 even if he now has a different advocate.
7. This is certainly a case where the defendant has been given ample opportunity to prosecute his case but he drove himself away from the seat of justice, even failing to attend court on a scheduled date of hearing.
8. It cannot be gainsaid that our judicial system is clogged up with cases because of the failure by litigants and advocates to embrace the overriding objectives set out under section 1A of the Civil Procedure Act, and article 159 (2) (b) as well as article 50 (1) (e) of the Constitution. The defendant squandered his chances to be heard such that five years down the line, he has no defence.
9. In the case of Nginyanga Kavole v Mailu Gideon [2019] eKLR, the court had this to say on the right to be heard:“What the applicant is entitled to is a reasonable opportunity of being heard on appeal and once that right is availed to him and he does not utilise it, he can no longer complain of being denied an opportunity of being heard ….”.
10. It is therefore trite law that the responsibility to prosecute a suit, rests on the shoulders of a litigant and not her advocate. This was clearly articulated by Angote J. in Mwangi Gachiengu & 2othersv Mwaura Githuku &another–(2019) eKLR in the following words:“it is trite law that a matter once filed in court does not belong to the advocate but to the litigant. It is the responsibility of the litigant to be in constant touch with his advocate on the position of the matter”.
11. The circumstances of this case do not warrant this court to exercise its discretion in favour of the applicant. Thus the application dated August 5, 2022 is hereby dismissed with costs to the plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Masinde for Plaintiff/RespondentOchanda for Defendant/ApplicantCourt Assistant: Eddel/Vanilla