Rhoda S Kilu v Jianxi Water and Hydropower Construction Kenya Ltd [2022] KEELC 1242 (KLR)
The bottom line
#A Meru court refused to let a road contractor re-open its defence case after judgment loomed, confirming parties—not lawyers—must gather evidence for trial.
What this practically means
#Executive summary
#Key legal issues
#Whether judgment should be arrested to allow re-opening of the defence case
No. The applicant sought not to recall witnesses but to gather wholly new evidence from the plaintiff's land after closure of the case; no basis laid, inordinate unexplained delay, and grave prejudice to the plaintiff.
The court distinguished re-opening for recall of existing witnesses (Section 146(4) Evidence Act, Order 18 Rule 10) from the novel request to go to the locus in quo, extract evidence, prepare expert reports and testify. The applicant never possessed the evidence, gave no reason for not gathering it since 2018, and the orders would compel the plaintiff to open her land indefinitely. The overriding objective and Order 21 Rule 1 (judgment within 60 days) favoured proceeding to judgment.
Whether mistakes of former advocates justify re-opening
No. The case belongs to the party who instructs counsel and must procure its own documents and witnesses.
The court held the right to choose counsel belongs to the party, but so does responsibility for assembling the case. Blaming erstwhile advocates for failing to call a surveyor and NEMA officer did not excuse three years of inaction, especially where leave to amend the defence had been granted and not exploited.
Whether the applicant's submissions were consistent with its pleaded defence
No. The submissions asserting an admitted innocent trespass contradicted the defence that the parcels belonged to a third party and no trespass on the plaintiff's land occurred.
The court noted the affidavit and submissions were at variance with the defence, which denied trespass and blamed an occupier, Mwiti Nyaga Niato. Reliance on submissions to assert admitted liability was misleading since submissions are not evidence and pleadings bind parties.
Legal principles established
#- A court may allow re-opening of a case or recall of witnesses only where the evidence is relevant, crucial, and the application is brought within reasonable time with explained delay and no undue prejudice to the opposite party.
- Procuring evidence belongs to the party, not its advocates; mistakes of counsel in failing to gather evidence are not a ground to re-open a closed case.
- A party seeking fresh evidence must show it could not with reasonable diligence have been obtained for trial and must not be abusing the process to reconstruct its case.
- Submissions are not evidence; a supporting affidavit seeking discretionary orders must be consistent and honest.
Court orders
#- 1.The defendant's application dated 17.12.2021 seeking to arrest delivery of judgment, re-open the defence case, call additional witnesses and obtain police protection for site assessments is dismissed with costs.
- 2.Time is extended to the applicant to file its written submissions by close of business on 28.2.2022.
- Jurisdiction invoked
- Articles 159, 50, 47, 165(2)(b) of the Constitution as read with Sections 1A, 1B, 3A of the Civil Procedure Act and Sections 3, 13, 18, 19 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rhoda S Kilu v Jianxi Water and Hydropower Construction Kenya Ltd [2022] KEELC 1242 (KLR)", Case Analysis (2022). Not stated in excerpt (Meru ELC suit; plaint dated 13.8.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1242/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.