Nirestein & another v Taga & 3 others [2025] KEELC 4284 (KLR)

Nirestein & another v Taga & 3 others (Environment & Land Case E003 of 2024) [2025] KEELC 4284 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4284 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment & Land Case E003 of 2024

LN Gacheru, J

June 5, 2025

Between

Michelle S Nirestein

1st Plaintiff

Conservation Centre Trust

2nd Plaintiff

and

Harrison Pemba Taga

1st Defendant

Miriam Tankua Kashaa

2nd Defendant

Friends of Maasai Mara

3rd Defendant

Mara Napa Camps Limited

4th Defendant

Ruling

1. The Plaintiffs herein filed this suit vide a Plaint dated 16th February 2024, and sought for Judgement against the Defendants herein jointly and severally for various orders. Among the prayers sought is a declaration that the 1st and 3rd Defendants acquired the titles to land parcels No. Cis Mara/ Talek/406, Cis Mara /Talek/407 and Cis Mara/ talek/408 illegally, un-procedurally, fraudulently and through misrepresentation.

2. Simultaneously, the Plaintiffs filed a Notice of Motion Application even dated and sought for injunctive orders against the Defendants. When the matter was placed before the Judge on 19th February 2024, the Court directed that the matter be served upon the Respondents for inter-parties hearing on 4th March 2024. Further, the court allowed prayers Nos 2, 3 4 and 5 of the said Application on a temporary basis.

3. The matter was set for mention on 4th March 2024, virtually. From the court record, this matter has been proceeding virtually all along, sometimes with very lengthy proceedings and protracted arguments, which were well captured in the court record. Further, various Applications have been filed and determined virtually, without any claim of prejudice or breach of right to fair hearing by any of the parties herein. However, from the pleadings and the various applications filed in this matter, the suit herein is protracted and emotive.

4. On 23rd May 2024, the court delivered a Ruling on the Notice of Motion Application dated 16th February 2024, and granted various injunctive Orders as prayed. Thereafter, further mentions and proceedings were undertaken virtually. Several other Applications were filed and determined by the court and one such Ruling was delivered on 28th August 2024.

5. Eventually, the court directed the parties to appear for Pre- trial Conference, directions and case management on 29th January 2025, which appearance was also done virtually. Further, the parties’ advocates also appeared before this court on 11th February 2025, for further Pre- trial directions, wherein Mr Okwach for the Plaintiffs informed the court that he had complied with Order 11, by filing the trial bundle and documents. Mr Kanchory for the Defendants informed the court that a hearing date could be given.

6. However, the court directed the counsels to file paginated and bound trial bundles and documents within 21 days from the date thereof, and the matter was set for mention on 6th March 2025 to confirm compliance and for taking of a hearing date. On 6th March 2025, Mr Kanchory for the Defendants was the only counsel present, as Mr Okwach for the Plaintiffs was absent. The matter was given another Pre-trial Conference date of 7th April 2025.

7. The court records shows that on 7th April 2025, both Mr Okwach for the Plaintiffs and Mr Kanchory for the Defendants were present in court virtually. The counsels confirmed that they had complied by filing the trial bundles. Consequently, the matter was certified ready for hearing and a hearing date was set for 21st May 2025, which trial was confirmed to proceed virtually. There was no indication that any of the party or counsel was uncomfortable with virtual hearing.

8. When the matter was called out for hearing on 21st May 2025, virtually, the Plaintiffs’ counsel Mr. Okwach informed the court that he was ready to proceed with one witness who was present virtually. However, Mr Kanchory for the Defendants informed the court that he was not ready to proceed because of two reasons. Firstly, he alleged that he was not served with the trial bundle by the Plaintiffs counsel. Secondly, he sought to have the matter proceed for hearing physically in open court, so that the 1st Plaintiff can appear in court to give her evidence and be cross-examined physically.

9. It was Mr. Kanchory’s further submissions that his clients had a choice to make on how to proceed with the matter, and they had chosen a physical hearing. Further, he submitted that virtual hearing will disadvantage his clients, and will compromise their right to fair hearing, and thus they have objected to virtual hearing, and he requested for a Ruling on that aspect.

10. Mr Okwach for the Plaintiffs submitted that the suit was filed while the 1st Plaintiff lived at Mara Napa Camp within the jurisdiction of this court. However, there were consistent attacks on her by goons and attempts on her life. That the USA, Embassy advised her that since her life was in danger, it was prudent and for her own safety to travel back home(USA), and proceed with the matter virtually.

11. Further, that due to the threats to life, the 1st Plaintiff is fearful that coming back to the jurisdiction of this court for physical hearing would be risking her life. It was also submitted that demanding for physical appearance of the 1st Plaintiff is an attempt to frustrate her pursuit of justice, as there have been continuous and/or consistent attacks and invasion to the property even after she left.

12. Mr Okwach further submitted that this matter has always proceeded virtually, wherein lengthy recordings have been conducted and no prejudice has been occasioned to any of the parties herein. Therefore, virtual hearing will not impair or impede fair hearing as alleged by the Defendants, and justice must be seen to be done to both parties. That since the 1st Plaintiff has valid fear for her well being and life, and that no prejudice will be occasioned to anyone, then the matter can proceed virtually.

13. In response Mr Kanchory submitted that this a very hotly contested matter, which cannot proceed virtually because the documents are numerous, and which documents would need to be physically shown to the witness during cross examination. He also submitted that the 1st Plaintiff is out of this jurisdiction because she is a fugitive from the law, who left the country when she realised that she was about to be arrested to face criminal charges for her actions. Therefore the court should not aid a fugitive, and virtual hearing would impede the right to fair hearing as provided in the constitution, and the right to fair hearing should be upheld.

14. The Court has laid down the history of this case and proceedings before, to demonstrate that this matter has always proceeded in court virtually . This court is alive to the provisions of the Constitution on the right to fair hearing, which hearing should be conducted in the presence of the parties, and in open court, unless a party chooses not to attend court. Article 50( 1) of the Constitution states that every person has a right to have any dispute that can be resolved by application of law decided in a fair and public hearing before a court, or if appropriate another independent and impartial tribunal or body.

15. Hearing of civil disputes are governed by the Civil Procedure Act and Rules 2010, and ordinarily when the Act refers to Court, it is the physical building. Consequently, the provisions on hearing and consequences of non attendance as provided by Order 12 refers to attending physical court. Ordinarily hearing of cases, by taking evidence, cross examination of witnesses, submissions and delivery of judgements are envisaged to happen in open or physical court.

16. Therefore, according to the Civil Procedure Act and Rules an open court refers to hearing disputes in a public court room where court proceedings are held in public and open to general public, media and in open court rooms allowing anyone to attend and observe the proceedings, thus open justice.

17. However, with the onset of Covid 19 Pandemic, when physical contact was limited or barred completely, courts adopted virtual hearings, and consequently several Practice Directions on Virtual / or Electronic hearings have been issued to guide courts on how to proceed with such virtual hearings. Such practice directions were first gazetted on 4th March, 2020 vide Gazette Notice No.2357 published on 20th March 2020, being Practice Directions on electronic case management.

18. Further, the Judiciaries all over the world have invested so much in promoting virtual or online hearings. Even after the cessations of measures adopted during the Covid 19 Pandemic, virtual hearings were not abolished, but have been embraced as one way of prompting accessing to justice in an expeditious and affordable manner.

19. Since the adoption of virtual hearings, so many cases have been heard and determined virtually in all hierarchies of our Courts. In fact, adoption of virtual hearings have made access to justice cheaper, and less time consuming. Indeed, the advantages of virtual court proceedings are immense, as parties no longer have to travel long distances to court for hearing of their cases since they can access courts from anywhere, reducing the overall costs of accessing justice and / or litigation.

20. However, the virtual courts have their flipside too. Technology can fail, poor internet connectivity or even power failure, can affect smooth hearing of cases virtually. Due to the above, virtual court proceedings may well be seen to threaten Article 50 of the Constitution, which guarantees the right to a fair hearing, but measures have been undertaken by Judiciaries to reduce such disruption of virtual courts proceedings.

21. Bearing the above in mind, this court will proceed to determine whether the Defendants objection on virtual hearing as submitted by their Counsel,(Mr Kanchory) can stand. Mr Kanchory submitted that allowing the 1st Plaintiff to give her testimony virtually will impede on the right to fair hearing as provided by Article 50 of the Constitution. Right to fair hearing entails allowing the dispute to be resolved in a fair and public hearing. By hearing a matter virtually, the parties will have to attend a virtual court, where a link to join the court is provided on the Cause list, which is a public document, and any party seeking admission to the virtual court using such link is not restricted, but is admitted to participate and follow the proceedings. Therefore, virtual court is an open and public court, with no restriction to access.

22. Further, before the hearing date was given and confirmed, parties herein had exchanged the trial bundles and they know what evidence the other party will avail. Indeed, it can be assumed the parties and witness are also in possession of the trial bundles and documents intended to be produced as exhibits. Therefore, during the hearing and cross-examination the witnesses can be referred to each document produced as exhibits during cross examination. It is therefore not true that virtual hearing will impede the right to fair trial.

23. The court is guided by the provisions of the Civil Procedure Act, as it manages the cases before it in court. Section 1A of the Civil Procedure Act mandates the court to facilitate the just, expeditious, proportionate and affordable resolution of Civil disputes before the court. Further section 1B provides that the court has a duty of furthering the overriding objective of the Act, as provided in section 1A,above. One such objective is to have cases brought before the court determined expeditiously and in an affordable way.

24. The 1st Plaintiff herein is based in USA, and would wish to give her evidence virtually. She alleged that her life is in danger due to constant attacks on her while living at Mara Napa Camp, due to this dispute, and thus she feels unsafe to travel to the jurisdiction of this court to attend a physical hearing of the case. The Defendants have denied that the 1ST Plaintiff’s life is in danger, and claimed that she is a fugitive from law, as she left the country when she realised she was about to be arrested and charged with criminal offence.

25. The suit before this court is a civil suit, and this court has not issued any warrant of arrest. This court is only interested in taking evidence of parties who are involved in this civil dispute. The court herein is not involved in any intended criminal case against any party herein, specifically the 1st Plaintiff. Matters criminal in nature are dealt by the relevant institutions, and is the work of the Police. The court cannot deny a party virtual hearing on allegation that he/she is a fugitive from the law, unless the court has found such party to be in contempt of court, and none of the party herein has been found to be in any contempt.

26. Even if the 1st Plaintiff’s life was not in danger, but she is out of jurisdiction, and would prefer to proceed virtually, this court has an obligation under the Constitution and statute law to expedite a matter before it, allow easy access to justice and it cannot fail to hear such witness, if no good reasons are advanced. The overriding objectives of section 1A of the Civil Procedure Act on expeditious and affordable disposal of matters before the court comes into play.

27. Further Article 159(2)( b) of the Constitution behoves this court to administer justice without undue delay. If the court would deny the 1st Plaintiff that opportunity of participating in the proceeding herein virtually and insist on physical appearance, that would amount to delayed justice, and denial of affordable access to court.

28. As was submitted by Mr Okwach for the Plaintiffs, fair hearing cuts across both parties, and is not a preserve of one party. If the 1st Plaintiff feels that her life is in danger, and thus the reasons why she travelled back to her country, then would insisting that she appears physically in court amount to fair hearing? It is the considered view of this court that it would not be fair hearing.

29. There is no evidence of any prejudice that would be occasioned to the Defendants if the matter proceeds for hearing virtually, since the Defendants will be at liberty to join and attend the virtual court, their advocate Mr Kanchory who is in possession of the trial bundle from the Plaintiffs and is assumed to have received adequate instructions from his clients(Defendants) will have an opportunity to cross examine the witness (1st Plaintiff), an thus there will be no breach of right to fair hearing, as alluded by the Defendants.

30. The matter came for Pre-Trial Conference and Case management on 7th April 2025, and both advocates confirmed that the matter was ready for hearing. A hearing date was taken, and the advocates confirmed that the hearing would proceed virtually. Therefore, by requesting the matter to proceed physically in open court on the date of the hearing, that application was basically meant to scuttle the intended hearing, and frustrate the witness who was present virtually from abroad.

31. The Constitution of Kenya 2010, enjoins this Court to expeditiously dispose of matters before it, and thus the court has a duty to manage matters before it. In doing so, the court went through a pre trial conference or case management with the counsels for the parties herein, and the matter was confirmed ready for hearing, which hearing was to be conducted virtually.

32. Order 11 rule 3(d) of the Civil Procedure Rules, provides that during the case management stage, the parties and the court will determine any other matter relating to management, hearing and/or disposal of the case. It was during this stage that parties chose to proceed with the case virtually. The Defendants could therefore not turn around on the date of the hearing and object to virtual hearing and demand physical attendance of the 1st Plaintiff.

33. Courts in this court have had occasions to decide on whether to allow virtual hearing or not. This court will be persuaded by the case of Alice Wangui Mwangi v Loxea Limited [2022] eKLR, where the court held;As regards prejudice, the Claimant contends that denial of the application will be a violation of Article 159(2)(b) of the Constitution of Kenya, 2010 and a virtual hearing is impracticable due to the 8-hour time difference. On the issue of violation of Article 159(2)(b) of the Constitution, the Court is not persuaded the same will be violated in the event the application herein is unsuccessful. 41. Similarly, the Court is neither persuaded nor convinced that a virtual hearing is impractical owing the time difference between Canada and Kenya. It is not in dispute that since the implementation of the Court Practice Directions, 2020, virtual hearings have been norm and many cases have been disposed of more expeditiously even in circumstances in which one party was a resident of a different time zone such as Untied States of America or the United Kingdom.”

34. Further, the Court of Appeal in the case of Mwangi v Consolidated Bank of Kenya Limited & 3 others (Civil Appeal E104 of 2021) [2024] KECA 250 (KLR) (8 March 2024) (Judgment), held;“If the appellant’s wish to proceed in open court was genuine, he could have notified the court the moment the hearing date was firmly set. That he did not do, but waited until the very last moment. In addition, how the appellant was going to proceed in open court when he was not even present in court is not clear to us. This persuades us to agree with the respondents that the belated wish to proceed with the hearing in open court was nothing but an afterthought, a rouse to push the court to the wall, so as to make the desired adjournment a fiat accompli.”

35. This court having come to a conclusion that the rights of the Defendants herein will not be compromised or breached by the virtual hearing finds and holds that the objection by Mr Kanchory for the Defendants cannot stand, as that concern was not raised on the date of Case management, or during the other or earlier court appearances wherein the matter has been proceeding virtually, even for hours. There is no evidence of prejudice that has been occasioned to the Defendants due to the previous virtual proceedings. Indeed, the objection herein caused the matter to be adjourned, since the court had to retreat and prepare this ruling.

36. Consequently, the objection by Mr Kanchory on virtual hearing is overruled. The matter to proceed for hearing virtually especially on the evidence of 1st Plaintiff who is based in USA, as the court cannot force her to travel to Kenya for physical hearing of this case, especially after she has intimated that her life is in danger. Her evidence will be taken virtually, and cross examination will also be done virtually. In the event the Defendants would wish to have their evidence taken physically in open court, then that right is still open to them, and a hybrid mode of hearing will be adopted.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 5TH DAY OF JUNE 2025. L. GACHERUJUDGEIn the presence of:Elijah Meyoki – Court AssistantMr. Okwatch for the PlaintiffsMr. Kanchory for the DefendantsL. GACHERUJUDGE