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ELCPartially AllowedNot stated in judgment (application dated 25th November 2025)

Hassan v De Fabiana & 2 others (Land Case E046 of 2020) [2026] KEELC 1297 (KLR)

Environment and Land Court
2 March 2026
876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi reopened a defendant's case after illness, but only because she agreed to pay costs promptly.

What this practically means

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Executive summary

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The applicant, the 1st defendant in the underlying suit before the Environment and Land Court at Malindi, moved the court by an application dated 25th November 2025 seeking to vacate and set aside orders made on 24th November 2025 closing the defence case, and to reopen the defence case so that she could give evidence, produce documents and be cross-examined. The applicant argued she was indisposed on the hearing date, could not attend, and that her defence raised triable issues, relying on Shah v Mbogo and Wachira Karani v Bildad Wachira. The plaintiff, through the affidavit of Enrique Quercioli, opposed the application, contending that counsel had made an oral adjournment application which the court had already disallowed for lack of supporting evidence, doubting the veracity of the treatment notes produced, and characterising the application as res judicata. The court held that although opposing counsel ought to be notified of a litigant's indisposition in a timely fashion, the applicant had shown documents evidencing illness and was accorded the benefit of doubt, since no one can predict illness. The court found the applicant had a genuine desire to be heard and that, as she intended to rely only on documents already filed and not to file further documents, the inconvenience to the respondents was limited. The court allowed the application on terms, permitting the reopening of the defence case conditional on the applicant paying the plaintiff and the 2nd defendant (on behalf of the 3rd defendant) KShs 30,000/= each as costs of the application before the next mention, failing which the orders would lapse, and directed a mention on 20th May 2026 for further directions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders of 24th November 2025 closing the defence case should be vacated and set aside
  2. 2.Whether the defence case should be reopened to allow the 1st defendant to give evidence, produce documents and be cross-examined
  3. 3.Whether the application is res judicata given the earlier oral adjournment request that was disallowed
  4. 4.What terms, if any, should attach to the reopening of the defence case

Key legal issues

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01

Whether the court should exercise its discretion to reopen the defence case after it was closed suo moto

Holding

Yes - the application was allowed on terms, the applicant being given the benefit of doubt regarding her illness and paying costs as a condition

Reasoning

The court noted documents showing the applicant was unwell on the hearing date and gave her the benefit of doubt, observing that no one can predict illness. However, it emphasized the duty to notify opposing counsel of a litigant's indisposition in a timely fashion. Weighing prejudice, the court found the plaintiff would suffer some inconvenience, but noted the applicant intended to rely only on documents already filed, which reduced the prejudice. Balancing the applicant's genuine desire to be heard against the respondents' prejudice, the court exercised its discretion to reopen the defence case conditional on payment of costs.

p. 2
02

Whether the application was res judicata due to a prior oral adjournment application

Holding

The court did not uphold the res judicata objection and allowed the application

Reasoning

The plaintiff argued the application was res judicata because an earlier oral adjournment application had been disallowed. The court did not expressly determine this objection but proceeded to allow the application, effectively rejecting the argument as a bar to relief. The plaintiff's challenge to the veracity of the treatment notes was also set aside, the court being ready to accord the applicant the benefit of doubt.

p. 2

Legal principles established

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  • A party seeking to reopen a case must inform opposing counsel of a litigant's indisposition as a matter of courtesy and in a timely fashion
  • Reopening a case is less prejudicial where the applicant intends to rely only on documents already filed and does not intend to file further documents

Court orders

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  1. 1.Prayers no. 2, 3 and 4 in the application dated 25th November 2025 are allowed
  2. 2.The applicant shall pay the plaintiff, and the 2nd defendant on behalf of the 3rd defendant, Kenya Shillings 30,000/= each being costs of the application before the next mention date, in default of which the orders under (a) shall lapse
  3. 3.The matter to be mentioned on 20th May 2026 for further directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the court to reopen a case in the interest of a fair trial (not tied to a specific constitutional provision in the judgment)

Relief refused

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Prayer 1 - vacation/substitution of the 24th November 2025 orders as framed

The court instead allowed prayers 2, 3 and 4 to reopen the defence case; prayer 1 was not among the prayers allowed

p. 2

Costs

The applicant to pay the plaintiff KShs 30,000/= and the 2nd defendant (on behalf of the 3rd defendant) KShs 30,000/= as costs of the application before the next mention date, failing which the reopening orders lapse

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The prayers no, 2, 3, and 4 in the application dated 25th November 2025 are hereby allowed;
p. 2Final orders - application allowed
The applicant shall pay the plaintifi, and the 2nd defendant on behalf of the 3rd defendant, Kenya Shillings 30,000/= (thirty thousand only) each being costs of the application before the next mention date in default of which the orders made herein above under (a) shall lapse;
p. 2Final orders - conditional costs
in exercise of my discretion I hereby allow the application dated 25th November 2025
p. 2Discretionary reopening of defence case
the applicant has demonstrated a genuine desire to be heard. There are no further documents being sought to be filed by the applicant and she intends to rely on the filed documents only.
p. 2Basis for exercising discretion

Issues in the judgment

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minor

Judgment does not state the case number, names of the parties in full, or the nature of the underlying suit

minor

Judgment refers to 'plaintifi' with apparent typographical errors throughout and does not clarify the identity/roles of the 2nd and 3rd defendants

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hassan v De Fabiana & 2 others (Land Case E046 of 2020) [2026] KEELC 1297 (KLR)", Case Analysis (2026). Not stated in judgment (application dated 25th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1297/eng@2026-03-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.