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ELCDismissedNot stated in excerpt (Meru ELC suit; plaint dated 13.8.2018)· [2022] KEELC 1242 (KLR)

Rhoda S Kilu v Jianxi Water and Hydropower Construction Kenya Ltd [2022] KEELC 1242 (KLR)

Environment and Land Court
23 February 2022
7,274 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The defendant, a road contractor sued by a landowner for trespass and damages of about Kshs. 164,800,500 arising from murram excavation on her Kirindine-B parcels in Meru County, applied on 17.12.2021 to arrest delivery of judgment, re-open its defence case and call two expert witnesses (a land surveyor and a quantity surveyor), with police protection to access the plaintiff's land to prepare reports. The application was supported by an affidavit of Ran Longbing and opposed by the plaintiff as the fourth delaying tactic, brought after closure of the defence case on 27.10.2021 and after the defendant failed to file its submissions. Justice C.K. Nzili framed five issues and dismissed the application with costs on 23.2.2022. The court distinguished recall of witnesses under Section 146(4) of the Evidence Act and Order 18 Rule 10 from the novel request to gather entirely new evidence from the locus in quo after the close of pleadings and evidence. It held the applicant did not possess the evidence, gave no explanation for three years of inaction, blamed its former advocates contrary to the principle that parties, not counsel, must procure their evidence, and had declined leave to amend its defence. The submissions asserting an admitted innocent trespass contradicted the pleaded defence. Allowing the application would infringe the plaintiff's fair hearing and access-to-justice rights and delay judgment contrary to the overriding objective. The court extended time to 28.2.2022 for the defendant to file its submissions.

Key legal issues

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01

Whether judgment should be arrested to allow re-opening of the defence case

Holding

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.

Reasoning

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.

p. 7
02

Whether mistakes of former advocates justify re-opening

Holding

No. The case belongs to the party who instructs counsel and must procure its own documents and witnesses.

Reasoning

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.

p. 8
03

Whether the applicant's submissions were consistent with its pleaded defence

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Time is extended to the applicant to file its written submissions by close of business on 28.2.2022.

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 35, 47, 48, 50, 60(1), 159, 165(2)(b), 232(1)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 8, 25
  • Civil Procedure RulesOrders 3 Rule 2, 7 Rule 5, 9 Rules 5 & 17, 11, 15, 16(1), 17 Rule 4, 18 Rule 10, 21 Rule 1
  • Environment and Land Court ActSections 3, 13, 18, 19, 22, 24, 27
  • Evidence ActSection 146(4)
  • Land Consolidation ActCap 283, Sections 8 and 13
  • Land Adjudication ActSection 30
  • Environment Management and Coordination Act(referred to generally)
  • Fair Administrative Action Act(referred to generally)
  • Practice Directions of the Environment and Land CourtRules 16, 25, 27, 28, 31, 34, 36, 43 (2014)

Cases cited (33)

  • Raindrops Limited –vs- County Government of Kilifi
    [2020] eKLR
  • Susan Wavinya Mutavi –vs- Isaac Njoroge & Another
    [2020] eKLR
  • Techbiz Ltd. –vs- Royal Media Services Ltd
    [2021] eKLR
  • Richard Ncharpi Leiyagu –vs- IEBC & 2 Others as cited in Belinda Murai & Others –vs- Amos Wainaina
    [1978] KLR 278
  • Johana Kipkemei Too –vs- Hellen Tum
    [2014] eKLR
  • Raila Odinga & 5 Others –vs- IEBC & 3 Others
    [2013] eKLR
  • Raila Amollo Odinga & another –vs- Independent Electoral and Boundaries Commission Chairman (IEBC) & another
    [2017] eKLR
  • Ahmed Mohamad & another –vs- Mohamed Abdi Mohamed & 2 others
    [2018] eKLR
  • James Kimathi Muthui –vs- Ntibuka M’Mburugu & 2 Others
    [2021] eKLR
  • Karmali Tarmohammed & Another –vs- I.H Lakhani & Company
    [1958] EA 567
  • Benard Kabeu Kiriu –vs- Francis Waithaka Kiriu
    [2021] eKLR
  • Bwana Mohamed Bwana –vs- Silvano Buko Bonaya & 2 others
    [2015] eKLR
  • Jackton Nyanungo Ranguma –vs- Independent Electoral and Boundaries Commission & 2 others
    [2018] eKLR
  • CMC Aviation Ltd –vs- Kenya Airways Ltd (Cruisair Ltd)
    [1978] eKLR
  • James Nyoro Kibutiri –vs- Eliud Njau Kibutiri
    [1983] 1 IAR 60
  • Lehmann’s (E.A.) Ltd. –vs- R Lehmanns & Another Co. Ltd
    [1973] E.A 167
  • Erastus Wade Opande –vs- Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007
  • Nancy Wambui Gatheru –vs- Peter W Wanjere Ngugi
    Nairobi HCCC No. 36 of 1993
  • Ng’ang’a & Another –vs- George Owiti & Another
    [2008] 1 KLR (EP) 749
  • Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Avenue Car Hire & Another –vs- Slipha Wanjiru Muthegu
    Civil Appeal No. 302 of 1997
  • Joseph Muya Njuru –vs- Stephen Njoroge Kunda & 4 Others
    [2019] eKLR
  • Samuel Kiti Lewa –vs- Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Standard Chartered Financial Services & 2 Others –vs- Manchester Outfitters Ltd & 2 Others
    [2016] eKLR
  • Boniface Kivindyo Mutisya –vs- Alfred Kavila Kivindyo & 2 others
    [2020] eKLR
  • Mary Igoki Mutuaruchi –vs- Johnson Rwigi
    [2019] eKLR
  • Charles Omanga & Others –vs- Attorney General
    [2004] eKLR
  • Andrew Omtatah Okoiti –vs- Attorney General & Another
    [2011] eKLR
  • Council of County Governors –vs- Attorney General & Another
    [2017] eKLR
  • Mutua & 51 others –vs- Eveready Batteries Kenya Ltd
    [2005] eKLR
  • Ahmed Abdullahi Abdille –vs- Abdille Nur Abdi & 3 others
    [2019] eKLR
  • Prof Njuguna S. Ndungu –vs- EACC & Others
    [2014] eKLR
  • Cyrus Shakhalaga Khwa Jirongo –vs- Soy Developers Limited & 9 others
    [2020] eKLR
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

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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, "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.