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ELCPartially AllowedELC 5 of 2010 (consolidated with ELC Case No. 128 of 2020)· [2026] KEELC 1353 (KLR)

Nderitu & 6 others v Ndiara Enterprises Limited & 18 others (Environment and Land Case 5 of 2010 & 128 of 2020 (Consolidated)) [2026] KEELC 1353 (KLR)

Environment and Land Court
10 March 2026
1,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a party who missed a hearing date to testify after all, but made him pay the other side's costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Christine Ochieng J) determines the 5th Plaintiff's Notice of Motion dated 24th October 2025 in ELC 5 of 2010, consolidated with ELC 128 of 2020, in which Stephen Kamau sought to recall witnesses who testified in the absence of his counsel and to be allowed, together with his witnesses, to testify. The application was supported by his affidavit explaining that the 2nd Plaintiff testified and the Plaintiffs' case was closed when their advocate, Norah Owino, was absent due to illness. The Defendant, Ndiara Enterprises Limited, through its managing director Alfred Kariuki, opposed the application, alleging a consistent pattern of delay, that the 5th Plaintiff and his advocate deliberately absented themselves, and that an investigator confirmed the advocate was not admitted at Aga Khan Hospital Kisumu as claimed. The court framed a single issue: whether the Plaintiffs' case should be re-opened to allow the 5th Plaintiff to testify and whether the 2nd Plaintiff should be recalled for cross-examination. Applying Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd and Maiyo v Ng'enyi, and Section 146(4) of the Evidence Act and Article 50(1) of the Constitution, the court found that the Defendant had not closed its case and had demonstrated no prejudice. It allowed the application in part, re-opening the 5th Plaintiff's case and permitting him and his witnesses in ELC 5 of 2010 to testify, but declined to recall the other Plaintiffs for cross-examination. Costs of the application were awarded to the Defendant. The court also criticised the Defendant's hiring of an investigator as being in bad taste and contrary to the right to privacy.

Key legal issues

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01

Whether to re-open the 5th Plaintiff's case and allow him and his witnesses to testify

Holding

Application allowed; the Defendant had not closed its case and demonstrated no prejudice, so the court exercised its discretion in favour of re-opening

Reasoning

The court noted that on 25th February 2025 both the 5th Plaintiff and his counsel failed to attend court and the case was marked closed. Counsel explained illness. The court held that the Defendant had not closed its case and had not demonstrated prejudice. Relying on Article 50(1) of the Constitution and the authorities cited, the court found it in the interest of justice to re-open the 5th Plaintiff's case.

p. 5
02

Whether the 2nd Plaintiff and other witnesses should be recalled for cross-examination

Holding

Refused, as all Plaintiffs had testified and are on one side

Reasoning

The court declined the recall of other Plaintiffs for cross-examination because they had all testified and are on one side. It noted the Defendant would have leave to recall its own witness to clarify any issue arising after the 5th Plaintiff testified, if need be, thus protecting the Defendant's position.

p. 5

Legal principles established

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  • The court retains a judicious discretion to re-open a case where it serves justice and does not prejudice the opposite party; such discretion will not be exercised where the application is intended to fill gaps in evidence or is marked by inordinate and unexplained delay
  • The right to a fair hearing under Article 50(1) of the Constitution supports allowing a party an opportunity to present their case where no prejudice is demonstrated

Court orders

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  1. 1.The 5th Plaintiff, Stephen Kamau and his witnesses in ELC 5 of 2010 be and are hereby recalled to testify
  2. 2.Costs of this application is awarded to the Defendant Ndiara Enterprises Limited
Jurisdiction invoked
Inherent jurisdiction and discretion of the Environment and Land Court under the Civil Procedure Act and Article 50(1) of the Constitution

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, "Nderitu & 6 others v Ndiara Enterprises Limited & 18 others (Environment and Land Case 5 of 2010 & 128 of 2020 (Consolidated)) [2026] KEELC 1353 (KLR)", Case Analysis (2026). ELC 5 of 2010 (consolidated with ELC Case No. 128 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1353/eng@2026-03-10

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