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ELCDismissedNot stated in the judgment

Okullo v Atiang (Environment and Land Case E008 of 2024) [2026] KEELC 4271 (KLR)

Environment and Land Court
9 July 2026
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu refused to reopen a closed defence case because the defendant missed procedural steps and wanted to fill evidence gaps.

What this practically means

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Executive summary

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The Defendant brought a Notice of Motion dated 14th November 2025 under Article 159(2)(d) of the Constitution, section 3A of the Civil Procedure Act and Order 18 Rule 10 of the Civil Procedure Rules, seeking to reopen its closed case so that two witnesses, Joseph Odingo Achuro and Lawi Ndiwa Atito, could testify and produce their filed witness statements. The Defendant attributed the closure of its case to inadvertence by Junior Counsel holding brief, who allegedly failed to demonstrate that the statements had been filed and served. The Plaintiff opposed, asserting the application was misleading and dishonest: on 12th November 2025 the court had upheld an objection under Order 3 Rule 2, Order 7 Rule 5 and Order 11 and closed the defence case; the statements had neither been filed nor served; and reopening would reward procedural misconduct. The court reviewed the record and found that after DW3 testified, counsel for the Defendant closed the defence case without seeking to call the two witnesses; the original list of witnesses did not include them; although the Case Tracking System showed further lists of witnesses and statements filed in 2024 and 2025, there was no evidence of leave to file them, contrary to Order 3 Rule 2 and Order 7 Rule 5. Applying Susan Wavinya Mutavi v Isaac Njoroge & another [2020] KEELC 8 (KLR), the court held the grounds for reopening had not been demonstrated and declined the application, with each party bearing its own costs. It extended time for the filing of written submissions to expedite disposal of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Defendant's case should be reopened to allow two witnesses (Joseph Odingo Achuro and Lawi Ndiwa Atito) to testify and produce their witness statements
  2. 2.Whether the Defendant demonstrated grounds justifying the reopening of a closed case

Key legal issues

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01

Whether the court should exercise its discretion to reopen the defence case

Holding

The application was declined because none of the criteria for reopening a case were demonstrated

Reasoning

The court adopted the criteria in Susan Wavinya Mutavi v Isaac Njoroge & another: the discretion is judicial; reopening to fill gaps is impermissible; delay must be explained; the evidence must have been obtainable with reasonable diligence and be capable of influencing the result. On the record, the Defence case had been closed by counsel after DW3 testified, with nothing showing a request to call the two witnesses; the witnesses were absent from the original list, and the further lists and statements were filed without leave, contrary to Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules. The court found none of the grounds demonstrated and declined the application.

p. 3
02

Whether the witness statements of the two proposed witnesses had been filed and served

Holding

Although further lists of witnesses and statements appeared on the court Case Tracking System, there was no evidence of leave to file them, and no proof of the alleged service

Reasoning

The CTS showed a further list of witnesses dated 28th June 2024 naming Joseph Odinga Aduro with an attached statement, and a further list dated 24th March 2025 with the statement of Lawi Ndiwa Atito. However, the court found no evidence that leave was sought to file the additional lists and statements, contrary to Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules. The court also noted the original list of witnesses dated 30th May 2024 did not include the two persons sought to be called.

p. 3

Legal principles established

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  • The jurisdiction to reopen a case is discretionary and must be exercised judiciously against settled criteria, including absence of prejudice to the opposite party, no filling of evidentiary gaps, no inordinate unexplained delay, due diligence, importance of the evidence, and apparent credibility
  • Article 159 of the Constitution cannot be relied upon to cure blatant non-compliance with mandatory procedural rules

Court orders

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  1. 1.The application to reopen the defence case is declined
  2. 2.Each party shall bear its own costs of the application
  3. 3.The suit shall proceed in accordance with the court directions given on 12th November 2025
  4. 4.The time for parties to file submissions is extended; the Plaintiff to file and serve written submissions within 21 days hereof
  5. 5.The Defendant to file written submissions within 21 days of service of the Plaintiff's submissions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya, section 3A of the Civil Procedure Act and Order 18 Rule 10 of the Civil Procedure Rules

Relief refused

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Reopening of the Defendant's case to allow the two proposed witnesses to testify

The Defendant failed to demonstrate any of the established grounds for reopening a closed case; the proposed witnesses were not on the list of witnesses, the statements were filed without leave contrary to Order 3 Rule 2 and Order 7 Rule 5, and the evidence sought to be introduced was an attempt to fill gaps in the evidence

p. 3

Costs

Each party shall bear its own costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find these grounds for reopening the case have not been demonstrated. The application is declined. Each party shall bear its own costs of the application.
p. 3Dismissal of application and costs
First, the jurisdiction is a discretionary one and is to be exercised judiciously. In exercising that discretion, the court is duty-bound to ensure that the proposed re-opening of a part's case does not embarrass or prejudice the opposite party.
p. 3Test for reopening a closed case
Second, where the proposed reopening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea.
p. 3Reopening to fill evidentiary gaps
To expedite the disposal of the suit, the following directions are hereby given.
p. 3Final directions on submissions
The suit shall proceed in accordance with the court directions given on 12th November, 2025.
p. 3Final orders - conduct of suit

Issues in the judgment

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minor

Inconsistent spellings of the proposed witness's name across the judgment

minor

The judgment refers to the Defendant's application being heard after the Plaintiff's response, but labels the Plaintiff's submissions as filed on behalf of 'the Respondent', an inconsistency in party designation

minor

Typographical errors in dates and party names (e.g. '4t May 2026' and 'Plaintifi')

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, "Okullo v Atiang (Environment and Land Case E008 of 2024) [2026] KEELC 4271 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4271/eng@2026-07-09

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