Hassan v De Fabiana & 2 others (Land Case E046 of 2020) [2026] KEELC 1297 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the orders of 24th November 2025 closing the defence case should be vacated and set aside
- 2.Whether the defence case should be reopened to allow the 1st defendant to give evidence, produce documents and be cross-examined
- 3.Whether the application is res judicata given the earlier oral adjournment request that was disallowed
- 4.What terms, if any, should attach to the reopening of the defence case
Key legal issues
#Whether the court should exercise its discretion to reopen the defence case after it was closed suo moto
Yes - the application was allowed on terms, the applicant being given the benefit of doubt regarding her illness and paying costs as a condition
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.
Whether the application was res judicata due to a prior oral adjournment application
The court did not uphold the res judicata objection and allowed the application
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.
Legal principles established
#- 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
#- 1.Prayers no. 2, 3 and 4 in the application dated 25th November 2025 are allowed
- 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.The matter to be mentioned on 20th May 2026 for further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
#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;
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;
in exercise of my discretion I hereby allow the application dated 25th November 2025
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.
Issues in the judgment
#Judgment does not state the case number, names of the parties in full, or the nature of the underlying suit
Judgment refers to 'plaintifi' with apparent typographical errors throughout and does not clarify the identity/roles of the 2nd and 3rd defendants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.