Maruti v Maruti (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 1558 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant satisfied the review conditions of new and important evidence under Section 80 CPA and Order 45 Rule 1
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
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.
Whether the advocate's failure to advise on witnesses justifies reopening the case
No - the duty to avail witnesses and documents lies with the party, and the application was a fishing expedition
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.