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ELCDismissedKericho ELC Civil Suit No. 31 of 2007 (Notice of Motion dated 13th August, 2025)· [2026] KEELC 2352 (KLR)

Bartegan t/a Taptowon Agencies & another v Makori & 3 others (Environment and Land Case 119 of 2007) [2026] KEELC 2352 (KLR)

Environment and Land Court
23 April 2026
7,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kericho court refused to reopen a land case closed two years earlier, saying unexplained delay and missing documents don't earn second chances.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines a Notice of Motion dated 13th August, 2025 by which the 1st Defendant/Applicant sought to reopen her case to recall a witness to testify on her Counterclaim challenging the alleged unlawful auction of Plot LR 631/341, Kericho. The underlying suit, filed in 2007 by the Plaintiff who purchased the property at a 2000 public auction, sought eviction and a permanent injunction; the 1st Defendant counterclaimed seeking declarations that the auction was fraudulent and void. The Applicant contended that a vital witness was outside the court's jurisdiction during the hearing and that due to time constraints the witness was not examined on crucial aspects of the Counterclaim. The Plaintiff and the 2nd and 3rd Defendants opposed, demonstrating from the record that the 1st Defendant called two witnesses (DW1 and DW2), was granted leave to recall DW1, and closed her case on 17th July, 2023, making the application an afterthought filed two years later. The court, applying Section 146(4) of the Evidence Act, Order 18 Rule 10 of the Civil Procedure Rules and the principles in Smith v New South Wales, Samuel Kiti Lewa and Wavinya Mutavi, held that reopening is discretionary; the Applicant gave no plausible explanation for the omission, disclosed neither the identity of the witness nor the whereabouts of the documents (which dated from 2000-2008), and the delay was inordinate and unexplained. The court found the application was intended to fill gaps in evidence and would only prolong an 18-year-old suit. The application was dismissed with costs; the prayer for stay was refused as moot.

Key legal issues

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01

Whether the Applicant satisfied the threshold for reopening a closed case

Holding

Application dismissed; Applicant failed to demonstrate sufficient cause

Reasoning

The Applicant closed her case on 17th July, 2023 after two witnesses testified and DW1 had even been recalled. The application was filed two years later with no credible explanation. The evidence sought (letters from 2000-2008, a ruling of 2000, a Discharge Voucher) was available during the hearing and no due diligence explanation was offered. The identity of the 'vital witness' was not disclosed. The court found the proposed reopening was meant to fill gaps in evidence and would occasion further delay in an 18-year-old suit.

p. 16
02

Whether the proceedings should be stayed

Holding

Prayer refused as moot

Reasoning

The stay had been sought only pending hearing and determination of the application. Once the application was determined on the merits, no purpose would be served by granting a stay of proceedings already effectively concluded for that purpose.

p. 17

Legal principles established

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  • Reopening of a case after close of hearing is a discretionary remedy, exercised judiciously, refused where the delay is inordinate and unexplained or the reopening is intended to fill gaps in evidence
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the Court directs otherwise

Court orders

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  1. 1.The 1st Defendant/Applicant's Notice of Motion application dated 13th August, 2025 is dismissed
  2. 2.Costs of the application to the successful party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 27
  • Civil Procedure RulesOrder 18 Rule 10, Order 45, Order 51 Rule 1
  • Evidence ActSection 146(4)

Cases cited (16)

  • Patel vs East African Cargo Handling Services Ltd
    [1974] EA 75
  • Benjoh Amalgamated Ltd & another vs Kenya Commercial Bank Limited
    [2014] eKLR
  • Shah vs Mbogo & another
    [1967] EA 116
  • Mwangi vs Mwangi
    [1986] KLR 328
  • Susan Mutavi vs Isaac Njoroge & another
    [2019] eKLR
  • CMC Holdings Ltd vs Nzioki
    [2004] 1 KLR
  • Stephen Githua Kimani vs Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Global Tours & Travels Ltd vs Five Continents Travel Ltd
    [2000] eKLR
  • Kenya Power & Lighting Co. Ltd vs Esther Wanjoru Wokabi
    [2014] eKLR
  • Kebande vs Arasa (Environment and Land Originating Summons E004 OF 2022)
    [2024] KEELC 7103 (KLR)
  • Re Estate of the Late Philiph Chumba Sirma alias Sirma S/O Chumba (Deceased)
    [2025] KEHC 1891 (KLR)
  • Michael Kiplangat Cheruiyot vs Joseph Kipkoech Korir
    [2019] eKLR
  • Samuel Kiti Lewa vs Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR; also cited as [2015] KEHC 3930 (KLR)
  • Paan v Kariuki & 16 others (Environment & Land Case 80 of 2019)
    [2024] KEELC 5337 (KLR) (11 July 2024)
  • Smith Versus New South Wales
    HCA 36; (1992) 176 CLR 256
  • Simba Telecom Vs Karuhanga & Anor
    (2014) UGHC 98
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Order 18 Rule 10, Order 45 and Order 51 Rule 1 of the Civil Procedure Rules; Section 146(4) of the Evidence 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, "Bartegan t/a Taptowon Agencies & another v Makori & 3 others (Environment and Land Case 119 of 2007) [2026] KEELC 2352 (KLR)", Case Analysis (2026). Kericho ELC Civil Suit No. 31 of 2007 (Notice of Motion dated 13th August, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2352/eng@2026-04-23

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