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ELCPartially AllowedELC Case No. 11 of 2016 (with consolidated ELC Case No. 43 of 2017 (OS))· [2025] KEELC 191 (KLR)

Chepkorir & another v Langat & another (Environment & Land Case 11 of 2016) [2025] KEELC 191 (KLR)

Environment and Land Court
30 January 2025
LOL. A. Omollo
3,370 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Kericho land court let landowners reopen their case to challenge green cards, but refused to add new documents already duplicated on the court record.

What this practically means

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Executive summary

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The Plaintiffs/Applicants in ELC Case No. 11 of 2016, a land dispute over parcels comprised in Kericho/Kyogong/10 and its subdivisions, moved the court by Notice of Motion dated 16th February 2024 seeking to re-open their case and to file a further list of documents and witnesses. The matter had been consolidated with ELC Case No. 43 of 2017 (OS), in which the Defendants/Respondents claim adverse possession and cancellation of Title No. Kericho/Kyogong/1259. The Applicants argued that the Respondents' Amended Originating Summons dated 18th May 2023 introduced new issues and parcel numbers after both parties had closed their cases, violating their right to a fair hearing under Articles 50 and 159(2)(d) of the Constitution. The Respondents, in a Replying Affidavit sworn by Benjamin Langat, countered that they only annexed Green Cards already on record, that the Applicants had no new evidence, and that the application was meant to delay the suit and fill evidentiary gaps. The court identified three issues: re-opening the case, leave to file additional documents, and costs. Relying on Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd, the court applied the principle that re-opening is discretionary and must not embarrass or prejudice the opposite party or fill gaps in evidence. Noting that a prior direction of 24th October 2023 had already permitted the Plaintiffs to re-open their case to testify on the amended Originating Summons, the court granted leave to re-open and to recall or summon witnesses to rebut the Green Cards. However, it declined leave to file a further list of documents, holding that the Green Cards merely duplicated information already on record and caused no prejudice. Costs were ordered to abide the outcome of the suit.

Key legal issues

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01

Whether the Plaintiffs' case should be re-opened

Holding

The court allowed the re-opening, noting that on 24th October 2023 the court had already directed that the Plaintiffs be granted leave to re-open their case to testify on the amended Originating Summons

Reasoning

After the Defendants amended their Originating Summons, the court on 24th October 2023 expressly allowed the amendment and granted the Plaintiffs leave to re-open their case if need be to testify on the amended OS. Nothing therefore stood in the way of granting the prayer to re-open the case and call or recall witnesses.

p. 7
02

Whether the Plaintiffs should be granted leave to file additional documents

Holding

Leave declined because the Green Cards annexed to the amended Originating Summons introduce no new issues or evidence and the applicants showed no prejudice

Reasoning

The amendments consisted of prayers, and the three Green Cards annexed merely evidenced the register for Kericho/Kyogong/10 and its subdivisions, information always on record and testified to by both parties. The applicants did not specify the new parcel numbers allegedly introduced, annex the documents they sought to introduce, name intended witnesses, or explain any prejudice.

p. 7

Legal principles established

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  • The Court retains discretion to allow re-opening of a case, to be exercised judiciously so as not to embarrass or prejudice the opposite party; re-opening will not be allowed where intended to fill gaps in evidence or where there is inordinate and unexplained delay
  • Copies of the register (Green cards) are equivalent in substance to official searches already on record and do not constitute new evidence requiring a further list of documents

Court orders

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  1. 1.Leave granted to the Plaintiffs to re-open their case and they are at liberty to recall witnesses and/or summon witnesses to adduce evidence or rebut the contents of the Green Cards for Kericho/Kyogong/10, 1259 and 1260 annexed to the affidavit in support of the Originating Summons
  2. 2.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 50, 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3B
  • Civil Procedure RulesOrder 51 Rule 1
  • Registered Land Act (Cap 300)

Cases cited (3)

  • Samwel Kiti Lewa vs Housing Finance Co. of Kenya Ltd & James M. Kagete
    [2015] eKLR
  • Simba Telecom –v- Karuhanga & Anor
    (2014) UGHC 98
  • Smith –versus- New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
Jurisdiction invoked
Articles 50 & 159(2)(d) of the Constitution of Kenya; Sections 1A, 1B & 3B of the Civil Procedure Act; Order 51 Rule 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, "Chepkorir & another v Langat & another (Environment & Land Case 11 of 2016) [2025] KEELC 191 (KLR)", Case Analysis (2025). ELC Case No. 11 of 2016 (with consolidated ELC Case No. 43 of 2017 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/191/eng@2025-01-30

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