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ELCDismissedNot stated in the judgment· [2024] KEELC 5337 (KLR)

Paan v Kariuki & 16 others (Environment & Land Case 80 of 2019) [2024] KEELC 5337 (KLR)

Environment and Land Court
11 July 2024
LKL. Komingoi
1,531 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to reopen a closed land case because the new testimony added nothing the court had not already heard.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 6th September 2023 in which the plaintiff, Rakoi Ole Monirei Paan, sought to reopen his case after it was closed on 24th October 2022, so as to file a witness statement of Muyia Ene Rakoi (his wife) and call her as a witness. He explained that his previous advocates had failed to call her despite her being on his list of witnesses, that she had placed a caution on the suit land which was irregularly withdrawn by the 10th Defendant's advocate, and that no prejudice would result as the defendants could cross-examine her. The 10th Defendant, David Thiru Kihumbu, opposed the application as an abuse of process, arguing it was inordinately late, aimed at filling evidential gaps, and prejudicial since the 1st and 10th Defendants had already testified. In a ruling delivered virtually at Kajiado on 11th July 2024, L. Komingoi J identified two issues: whether the application was merited, and costs. The court reaffirmed that reopening is discretionary and requires new evidence that could not be obtained earlier with due diligence, cruciality to determination, absence of prejudice, no gap-filling, and no inordinate delay. The court found the wife's discovery of the removal of the caution was not new evidence, that PW1 had already testified extensively on the caution, and that counsel could cross-examine Kenneth N. Mungai on the removal within the existing trial. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the application to reopen the plaintiff's case met the threshold for reopening

Holding

The application was not merited; the proposed testimony was not new evidence and would offer no fresh insights

Reasoning

The court restated the threshold for reopening: new evidence unobtainable earlier with due diligence, cruciality, no prejudice, no gap-filling, and no inordinate delay. The wife's discovery of the caution's removal was accessible earlier through reasonable inquiry. PW1 had already testified extensively on the caution, and cross-examination of Kenneth N. Mungai remained available, so the testimony added nothing.

p. 4
02

Costs of the application

Holding

Costs were placed in the cause rather than awarded to any party immediately

Reasoning

Having dismissed the application, the court exercised its discretion on costs by ordering them to be in the cause, deferring allocation to the final outcome of the suit.

p. 4

Legal principles established

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  • Courts have discretion to reopen cases but it must be exercised judiciously, requiring new evidence that could not be obtained earlier with due diligence, cruciality to determination, absence of prejudice, no filling of evidential gaps, and no inordinate delay

Court orders

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  1. 1.The application to reopen the plaintiff's case is dismissed
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Article 50(1) and 159(2)(d) of the Constitution; Section 3A of the Civil Procedure Act; Order 51(1) of the Civil Procedure Rules

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, "Paan v Kariuki & 16 others (Environment & Land Case 80 of 2019) [2024] KEELC 5337 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5337/eng@2024-07-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.