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ELCDismissedNot stated in the judgment· [2026] KEELC 1558 (KLR)

Maruti v Maruti (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 1558 (KLR)

Environment and Land Court
18 March 2026
1,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kitale court refused to reopen a decided land case because the applicant could not show he tried hard enough to get the evidence earlier.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) on the defendant's application dated 18/11/2025 seeking review, variation or setting aside of the court's judgment dated 24/9/2025 and leave to adduce new evidence - a bank statement from Standard Chartered Bank, Kitale Branch covering September 2007 to 25/3/2008 - to show that Banker's Cheque No. 021214 was never paid into his account, and to call his mother and brother as additional witnesses. The plaintiff opposed, arguing the application was an afterthought and a delaying tactic to frustrate execution of the decree, that the defendant never showed he could not obtain the statement earlier, and that a party cannot blame its advocate for failing to call witnesses. The court reviewed the settled parameters for new evidence under Section 80 of the Civil Procedure Act and Order 45 Rule 1, applying Rose Kaiza v Angelo Mpanju Kaiza and Mohamed Abdi Mahamud, and the principle in Mzee Wanje v A.K. Saikwa that the rule is not for unsuccessful litigants to patch gaps in their case. The court found no due diligence: the defendant never summoned the bank, never alluded to the statement in his witness statement or testimony, the exhibit was uncertified and its provenance unexplained, and no statement from the bank's maker was filed. The court held that a case belongs to a party, not its advocate, and found the application a fishing expedition. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant satisfied the review conditions of new and important evidence under Section 80 CPA and Order 45 Rule 1

Holding

The court found no due diligence: the defendant never sought the bank statement before hearing, never summoned the bank, and the exhibit was uncertified and of unproven provenance

Reasoning

The court applied Rose Kaiza v Angelo Mpanju Kaiza and Mohamed Abdi Mahamud on the parameters for new evidence: due diligence, relevance and impact on the result. The defendant did not list or summon the bank during pretrial, did not allude to the evidence in his witness statement or testimony, and could not show when the statement was supplied or that he had only one bank account. The maker of the statement did not confirm its contents, and the easiest verification route (tracing the cheque through the clearing house) was not taken.

p. 3
02

Whether the advocate's failure to advise on witnesses justifies reopening the case

Holding

No - the duty to avail witnesses and documents lies with the party, and the application was a fishing expedition

Reasoning

The applicant blamed his former advocates for failing to call his mother and brother as witnesses. The court held that a litigant cannot fault his advocate after losing at a full hearing; calling and availing witnesses is the party's own duty. The rule on additional evidence is not meant to let an unsuccessful litigant patch up gaps in his case, citing Mzee Wanje v A.K. Saikwa as applied in Gachuki v Njenga.

p. 2

Legal principles established

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  • In a review application seeking to adduce new evidence, the central consideration is the due diligence exercised by the party, not merely the newness of the evidence
  • A case belongs to a party, not its advocate; failure to call or list witnesses cannot be blamed on the advocate
  • Once due diligence to obtain evidence fails, the other factors such as relevance or probative value are irrelevant

Court orders

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  1. 1.The application dated 18/11/2025 is dismissed with costs
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Maruti v Maruti (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 1558 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1558/eng@2026-03-18

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