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ELCDismissedNot stated in the judgment· [2025] KEELC 4829 (KLR)

Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees (Environment & Land Case 9 of 2019) [2025] KEELC 4829 (KLR)

Environment and Land Court
24 June 2025
COChristine Ochieng
2,404 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to reopen a case closed voluntarily, ruling that litigants cannot use review applications to fix evidence gaps caused by their own delay.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 19th March 2025 seeking review and setting aside of the court's orders of 15th October 2024 closing the Plaintiff's case, so as to allow its expert witness, S.S. Jabbal, a Chartered Quantity Surveyor, to testify and produce financial loss reports in support of a special damages claim of Kshs.324,886,296 for destruction of its sewer line. The Plaintiff contended its expert was unavailable on the hearing date due to bereavement and that closure of its case hampered its ability to pursue just compensation. The Defendant opposed, arguing the Plaintiff's Counsel voluntarily closed the case, the application was filed after over five months of unexplained delay, sought to fill gaps in evidence, and would prejudice the Defendant whose case was already closed. The court framed one issue: whether it should review/set aside the orders and re-open the Plaintiff's case. Applying Order 45 Rule 1(b) of the Civil Procedure Rules and the authorities on re-opening cases and admission of additional evidence, the court found the Plaintiff's Counsel voluntarily closed the case, the witness was always available and within the Plaintiff's knowledge, the court had granted several opportunities, and the late application would prejudice the Defendant. The Notice of Motion was found unmerited and dismissed with costs on 24th June 2025.

Key legal issues

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Whether the court should review/set aside the order closing the Plaintiff's case and re-open the Plaintiff's case to allow an expert witness to testify

Holding

The application was dismissed; the Plaintiff voluntarily closed its case and the application was an attempt to fill gaps in evidence after inordinate and unexplained delay

Reasoning

The court found the Plaintiff had been granted several opportunities to present its case and its Counsel voluntarily closed it. The expert witness was within the Plaintiff's knowledge and could have testified earlier. The application was filed about five months after closure, only after the Defendant filed submissions, and reopening would prejudice the Defendant whose case was already closed.

p. 5

Legal principles established

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  • An application for review must be brought within the parameters set out by Order 45 Rule 1(b) of the Civil Procedure Rules
  • Discretion to re-open a case must be exercised judiciously and will not be allowed where it is intended to fill gaps in evidence or where there is inordinate and unexplained delay

Court orders

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  1. 1.The Plaintiff’s Notice of Motion dated the 19th March, 2025 is dismissed with costs
Jurisdiction invoked
Order 45 Rule 1(b) of the Civil Procedure Rules; Articles 50 and 159(2) of the Constitution invoked by the Applicant

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, "Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees (Environment & Land Case 9 of 2019) [2025] KEELC 4829 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4829/eng@2025-06-24

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