Lelei v Kimeto (Environment and Land Case 1 of 2024) [2026] KEELC 4975 (KLR)
The bottom line
#A Kenyan court ruled that hearing directions made in someone's absence cannot block them from cross-examining witnesses in a contempt case.
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 Court should review/set aside its directions issued on 20th May 2026
- 2.Whether the application dated 4th March 2026 should proceed by way of viva voce evidence
Key legal issues
#Whether directions issued in the applicant's absence limiting the mode of hearing should be set aside
Yes - the directions limited the applicant's right to fair trial, and cross-examination of the respondent is part of the right to fair hearing.
The directions of 20th May 2026 were issued when there was no appearance for the plaintiff. The application sought contempt orders, which are quasi-criminal in character and require requisite proof, so the intended cross-examination forms part of the right to fair hearing. The Court has discretion under Order 51 Rule 16, read with Sections 3 and 3A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, to direct viva voce evidence in furtherance of substantive justice.
The Court's discretion over mode of hearing under Order 51 Rule 16
The Court may determine whether to hear a matter orally or by written submissions, guided by substantive justice.
Order 51 Rule 16 allows the Court to exercise discretion on the mode of hearing depending on the nature of the application and complexity of issues. That discretion must be exercised to realize substantive justice, aided by the inherent powers under Sections 3 and 3A of the Civil Procedure Act and the overriding objective in Section 3 of the Environment and Land Court Act, and Article 159(2)(b) that justice shall not be delayed.
Legal principles established
#- Where directions limiting a party's right to fair hearing, including cross-examination, are issued in that party's absence, the Court may set them aside and order viva voce evidence, especially where the application is quasi-criminal in character (contempt).
Court orders
#- 1.The directions issued on 20th May 2026 are reviewed/set aside
- 2.The application dated 4th March 2026 shall proceed by way of viva voce evidence
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 Rule 16 of the Civil Procedure Rules 2010; Sections 3 and 3A of the Civil Procedure Act (Cap 21); Section 3 of the Environment and Land Court Act; Article 159(2)(b) of the Constitution
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 application is allowed in terms of the principal prayers for review/setting aside the court's directions issued on 20th May 2026 and that the application dated 4/3/2026 do proceed by way of Viva Voce evidence as set out in paragraph 1 (a) and (b) hereinabove respectively.
Each party to bear their own costs.
it is the finding of this Court that the directions which were given in the absence of the applicant which tend to limit his right to fair trial
The orders sought in the application are quasi-criminal in character which require the requisite proof. This Court is clothed with the discretion to allow the application to be heard by viva voce evidence.
The right to a fair hearing entail notifying all parties of the hearing date, allowing each party to be heard, and permitting cross-examination of their opponents and witnesses.
Issues in the judgment
#The judgment describes James Kanyita Nderitu v Marios Ghikas & Anor as having 'established' the setting-aside principle, but the passage appears in the court's narration of authority rather than in submissions; attribution of this case as cited by the court is ambiguous.
The judgment refers to the applicant inconsistently as 'his' and 'her'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lelei v Kimeto (Environment and Land Case 1 of 2024) [2026] KEELC 4975 (KLR)", Case Analysis (2026). Kapsabet ELCLC No. E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4975/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.