Maiyo & another v Ng’enyi (Environment and Land Case 58 of 2017) [2025] KEELC 8649 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 18th March 2025 orders closing the defence case should be reviewed to allow re-cross-examination of DW1
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
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.
Whether leave should issue to summon the Director of Survey personally to produce the original survey file
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
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.
Costs of the application
Costs were ordered to abide the outcome of the suit rather than follow the event, as the application only partially succeeded
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.
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.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.The costs of the application shall abide the outcome of the suit
- 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.
- Nderitu & 6 others v Ndiara Enterprises Limited & 18 others (Environment and Land Case 5 of 2010 & 128 of 2020 (Consolidated)) [2026] KEELC 1353 (KLR)[2026] KEELC 1353 (KLR)10 Mar 2026followed
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.