Mkamenyi Farmers Cooperative Society Limited v Ministry of Lands and Physical Planning & 8 others (Environment & Land Case 15 of 2023) [2024] KEELC 3714 (KLR) (25 April 2024) (Ruling)
Neutral citation:
[2024] KEELC 3714 (KLR)
Republic of Kenya
Environment & Land Case 15 of 2023
NA Matheka, J
April 25, 2024
Between
Mkamenyi Farmers Cooperative Society Limited
Plaintiff
and
Ministry Of Lands And Physical Planning
1st Defendant
National Land Commission
2nd Defendant
Registrar Of Titles – Taita Taveta
3rd Defendant
Honourable Attorney General
4th Defendant
County Government Of Taita Taveta
5th Defendant
Voi Sisal Estate Limited
6th Defendant
Voi Plantation Limited
7th Defendant
Voi Point Limited
8th Defendant
Diamond Trust Bank Kenya Limited
9th Defendant
Ruling
1.The application is dated 20th February 2024 and is brought under Sections 63 (e) IA, 1B, 3, 3A of the Civil Procedure Act, Section 146 (4) of the Evidence Act and Order 18 Rule 10 of Civil Procedure Rules 2010 seeking the following orders;1.That this application be certified urgent and service be dispensed with in the first instance.2.This Honorable Court be pleased to set side proceeding and/or orders closing the 5th Defendant' s case and substitute the same with an order reopening cross-examination of the Defendants' witnesses basing on the evidence on record.3.That this Honorable Court be pleased to reopen the Defence case and make orders allowing the 5th Defendant to participate in the proceedings, by calling witnesses, to give evidence and produce documents for purposes of fair trial and just determination of real issues of dispute herein.4.That the 5th Defendant be allowed to file its defence and/or Statement of Admission out of the prescribed time.
2.It is based on the following grounds that the evidence of the 5th Defendant will greatly help this court to reach a sound and a just determination of this matter. That the rights and interests of the people of Taita Taveta County will be greatly prejudiced if this suit is allowed to proceed without the evidence of the 5th Defendant. That it is in the interest of justice that the 5th Defendant be allowed to participate in the proceedings by cross-examining the Defendants witnesses and calling witnesses, to give evidence and produce documents for purposes of fair trial and just determination of real issues in dispute. That the Plaintiff or other Defendants will not suffer any prejudice if this application is allowed.
3.Elizabeth Mkongo the County Executive Committee Member Lands, Physical Planning, Mining and Energy who was appointed in November 2022 stated that in February 2024 members of the public approached her to find out why the 5th Defendant was not participating in this case. She found out that the 5th Defendant had not filed any defence in this case and that their case was closed. That the mistake of the previous regime should not be revisited on the people of Taita Taveta. That the evidence of the 5th Defendant will greatly assist the court to reach a sound and just determination. That they have crucial witnesses who participated in the transfer of the said property.
4.I have carefully considered the application, the supporting affidavit, as well as submissions and authorities cited. In my considered view the issue that arise for determination is whether the Applicant has demonstrated sufficient cause to warrant the grant of the orders sought.
5.The discretion of the court to set aside exparte proceedings is unfettered. However, it must be exercised judiciously for the interests of justice. In the case of Shah v Mbogo & Another (1967) EA 116, the East African Court of Appeal stated as follows;Therefore, the discretion to set aside exparte proceedings ought to be exercised for purposes of furthering justice and not to obstruct or delay justice. Hence, it behooves an applicant for such orders to demonstrate the justification for such application by showing that there is sufficient cause why they failed to attend court and that their application is made in good faith and not meant to delay the course of justice.
6.In the Indian case of Parimal v Veena Bharti (2011), the Supreme Court of India stated that;
7.Similarly, in the case of Wachira Karani v Bildad Wachira (2016) eKLR, the court stated that;
8.Section 146(4) of the Evidence Act, Chapter 80 of the Laws of Kenya and Order 18 rule 10 does afford the Court the discretion to entertain the application and grant the orders sought to recall of the witnesses for the Defendants.
9.Order 18 Rule 10 of the Civil Procedure Rules provides that;It is not in dispute that this matter proceeded without the participation of the 5th Defendant and was at the stage of taking evidence of the last defence witness when this application was made. This appears to be a public interest matter which would indeed affect the people of Taita Taveta County and it would be prudent to allow the 5th Defendant who is the County Government of Taita Taveta to participate in the matter though belatedly. The 5th Defendant/Applicant wishes to file a statement of admissions in order to shed more light on the matter and to also call witnesses which they claim are crucial. I concur with the Applicant that the mistake of the previous regime should not be revisited on the people of Taita Taveta and that the evidence of the 5th Defendant will greatly assist the court to reach a sound and just determination. I find that the application is merited and I grant the same. Costs to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF APRIL 2024.N.A. MATHEKAJUDGEELC CASE NO. 15 OF 2023 Page 2 of 2