Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Case 58 of 2017· [2025] KEELC 8649 (KLR)

Maiyo & another v Ng’enyi (Environment and Land Case 58 of 2017) [2025] KEELC 8649 (KLR)

Environment and Land Court
11 December 2025
3,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines the Plaintiffs/Applicants' Notice of Motion dated 14th April, 2025, seeking review of the orders of 18th March, 2025 (by which the defence case was closed), leave to re-cross-examine DW1, and leave to summon the Director of Survey personally to produce the original survey file for Kericho/Municipality Block 6/111. The suit, begun by plaint in January 2011, concerns competing ownership claims to the suit land, met by a defence and counterclaim. The applicants argued the case was closed by mistake before DW1 could be re-cross-examined and that the documents produced by DW3 (a Principal Surveyor representing the Director of Survey) were suspect. The respondent countered that the application was a delaying tactic, that the Director of Survey had already testified through his agent, and that the applicants had fully cross-examined DW3. The court framed three issues: review of the 18th March 2025 orders, leave to summon the Director of Survey, and costs. It held that no statutory ground for review under Section 80 of the Civil Procedure Act and Order 45 was invoked, but exercised its discretion under Section 146(4) of the Evidence Act to allow recall of DW1 for the limited purposes set out in the court's order of 30th October 2024, the respondent not objecting. Leave to summon the Director of Survey was refused: he had been summoned, had testified through DW3, and the applicants had cross-examined DW3; complaints about his demeanour are the court's exclusive preserve. The application partially succeeded; costs were ordered to abide the outcome of the suit.

Key legal issues

#
01

Whether the 18th March 2025 orders closing the defence case should be reviewed to allow re-cross-examination of DW1

Holding

Review under Section 80/Order 45 was refused as the applicants invoked none of the statutory grounds, but the court granted leave to recall DW1 in exercise of its power under Section 146(4) of the Evidence Act, since the 30th October 2024 order had already directed DW1's recall for specified purposes and the respondent did not object

Reasoning

The court noted that on 30th October 2024 it had ordered DW1 recalled for the limited purpose of producing his National Identity Card and Letter of Discharge from Kenya Defence Forces. The respondent's counsel stated on 7th May 2025 that they did not object to the recall. The court accepted that this would cause delay but held it is better that all parties be given an opportunity to present their case than to leave them thinking the outcome would have been different had they been heard.

p. 7
02

Whether leave should issue to summon the Director of Survey personally to produce the original survey file

Holding

Refused. The Director of Survey had already been summoned under Order 16 Rule 1, testified through his agent (DW3, a Principal Land Surveyor), and the applicants had a full opportunity to cross-examine DW3; no basis for a further summons was laid

Reasoning

The record showed the court issued summons to the Director of Survey on 30th October 2024, and DW3 testified as his representative on 18th March 2024, was cross-examined, and confirmed the summons and that he lacked an authorisation letter. The applicants' assertion that DW3 behaved suspiciously could not substitute for the court's own assessment of demeanour, which is the court's exclusive preserve.

03

Costs of the application

Holding

Costs were ordered to abide the outcome of the suit rather than follow the event, as the application only partially succeeded

Reasoning

Although the general rule under Section 27 of the Civil Procedure Act is that costs follow the event and the successful party ordinarily gets costs, the application here succeeded only in part (recall of DW1 granted; summons to the Director of Survey refused), justifying an order that costs await the final result of the suit.

p. 9

Legal principles established

#
  • The circumstances for review are discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
  • The court may permit a witness to be recalled for further examination or cross-examination, and recalling a witness without objection causes no prejudice
  • The observation of a witness's demeanour and the deductions to be drawn therefrom are the preserve of the court, not of a litigant
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise

Court orders

#
  1. 1.The Plaintiffs/Applicants are granted leave to recall DW1 for further cross examination, for reasons and to the extent set out in the order issued on 30th October, 2024
  2. 2.The costs of the application shall abide the outcome of the suit

Authorities

#

Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 18 Rule 10
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 16 Rule 1
  • Evidence ActSection 146(4)
  • Constitution of KenyaArticle 50(1)

Cases cited (7)

  • Susan Wavinya Mutavi vs Isaac Njoroge & another
    [2020] eKLR
  • Samuel Kiti Lewa vs Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Maina v J.K Horeria t/a Horeria & Company & another
    [2023] eKLR
  • Samoei v National Housing Corporation & another
    (Civil Suit E008 of 2020) [2023] eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    [2007] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Dahir Sadik Ausaad v Modogashe Construction Ltd & 3 others
    [2016] eKLR
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act and Order 45 Rules 1 and 2, Order 16 Rule 1, Order 51 Rule 1 and Order 18 Rule 10 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Maiyo & another v Ng’enyi (Environment and Land Case 58 of 2017) [2025] KEELC 8649 (KLR)", Case Analysis (2025). Environment and Land Case 58 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8649/eng@2025-12-11

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