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ELCAllowedNot stated in the judgment· [2026] KEELC 1209 (KLR)

Kiunjuri v Nyahu & another (Land Originating Summons E005 of 2023) [2026] KEELC 1209 (KLR)

Environment and Land Court
2 March 2026
MGM.N. Gicheru
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by M.N. Gicheru J of the Environment and Land Court at Murang'a on a notice of motion dated 28-7-2025 brought by the Plaintiff under Order 18 rule 10 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking that the suit be reopened for further hearing, production of documents/evidence and examination of witnesses. The underlying suit is a claim by the Plaintiff to L.R. No. Loc.12/Sub-Loc.1/3578 by adverse possession for over twelve years; the Defendants deny occupation by the Plaintiff or his late wife and contend the sale agreements are void as intermeddling with a deceased's estate under Section 45 of the Law of Succession Act. The Plaintiff explained that exhibit No. 4 was incomplete due to an innocent omission by his shop assistant and that the original document was directly relevant. The Defendants opposed, arguing the motion was an afterthought, would cause prejudice, delay and introduce unpleaded issues. They relied on the additional-evidence principles in Raila Odinga v IEBC and Moses Macharia Kigo v DPP. The court held that the discretion under Order 18 rule 10 exists to recall witnesses; that only parameters (a) to (i) of the appellate test apply at trial; that the evidence was relevant, its omission undisputed, not voluminous, and would not take the Defendants by surprise since they had already responded to the evidence of sale; and that excluding it would offend the Article 50(1) right to a fair hearing. The motion was allowed: the suit was reopened, the Plaintiff to avail the original evidence, and the Defendants given liberty to file and serve rebuttal evidence. No costs order was made.

Key legal issues

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01

Whether the Plaintiff met the legal threshold for reopening his case and introducing additional documents after closing his case

Holding

Yes. The additional evidence is relevant, not voluminous, its omission was explained as an innocent mistake by the Plaintiff's shop assistant, the Defendants were aware of the documents and had already responded to the evidence of sale, and the Defendants will have an opportunity to rebut.

Reasoning

The court held that although the eleven-parameter test for additional evidence was drawn largely from appellate authorities, the parameters applicable to a trial court reopening are (a) to (i). The evidence sought is relevant to whether there was a sale of the suit land; the explanation for its omission (a shop assistant's error) was undisputed; the material is not voluminous and can easily be responded to; and the Defendants, having addressed the sale in their replying affidavit, would not be taken by surprise. Excluding the evidence would imperil fair resolution of the dispute.

p. 3

Legal principles established

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  • The court has discretion under Order 18 rule 10 of the Civil Procedure Rules to allow the recall of any witness who has been examined, exercisable within the applicable parameters for additional evidence.
  • Locking out evidence that may assist the court in fair resolution of a dispute offends the right to a fair hearing under Article 50(1) of the Constitution, especially where the opposing party will have a chance to rebut.

Court orders

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  1. 1.The suit be reopened for further hearing and production of documents/evidence and examination of witnesses
  2. 2.The Plaintiff to avail the original evidence at the hearing
  3. 3.The Defendants at liberty to file and serve additional evidence in rebuttal of the additional evidence
Jurisdiction invoked
Order 18 rule 10 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kiunjuri v Nyahu & another (Land Originating Summons E005 of 2023) [2026] KEELC 1209 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1209/eng@2026-03-02

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