Kilonzo v Top Grade Logistics Limited & 2 others (Environment and Land Case 1 of 2024) [2026] KEELC 3399 (KLR)

5. Counsel for the Plaintifi/Applicant submitted that the Plaint in Kajiado HCCC No. 27 of 2019 and the Judgment in Kajiado CM ELC No. 86 of 2019 were inadvertently omitted and that the omission arose from the transfer of the matter from the High Court to the Environment and Land Court, as well as a change of counsel. 6. He submits that the Court has discretionary power under Articles 50 and 159(2) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Section 19(1) of the Environment and Land Court Act to re-open a case where the interests of justice so require. He reiterated that the documents which had already been listed in the list of documents are material to the dispute, relate to the same parties and properties, and would assist the Court in determining the dispute comprehensively. 7. Further, that the application was promptly filed before the defence hearing and prior to judgment, and therefore was not prejudicial to the Respondents, as they would have an opportunity to respond. Reliance was placed on Ogolla & another v Omanje & another [2024] KEELC 5345 (KLR) and Fredrick Laibuni Mailutha v County Government of Kajiado & 2 others [2021] eKLR to support reopening of a case where no prejudice will be occasioned. 8. Counsel for the 2nd and 3rd Defendants submit that reopening of the case is an attempt to fill gaps exposed during cross-examination and it should not be allowed where evidence could have been produced earlier with due diligence. 9. The Respondents further submit that the Plaint in Kajiado HCCC No. 27 of 2019 did not constitute evidence but merely pleadings which must be proved through evidence, relying on CMC Aviation Ltd v Crusair Ltd (No.1) [1987] KLR 103 where the Court held that pleadings do not constitute evidence unless expressly admitted. They further argue that the documents were always within the Plaintifi’s possession and no satisfactory explanation had been given for the failure to produce them during trial, amounting to negligence rather than inadvertence. 10. The Respondents also submit that mistakes by counsel should not automatically attract the Court’s discretion in favour of a litigant with reference to Julius Mbaabu Marete v Tom Ayora & 3 others [2018] KEHC 5791 (KLR) and Sagala v Bridge International Academies Limited [2024] KEELRC 214 (RLR), where the courts declined to reopen cases on account of counsel’s negligence or procedural lapses. 11. Counsel thus sought for dismissal of the application with costs or should it be allowed they be granted thrown away costs of Kshs. 50,000. 12. The sole issue for determination is whether the Plaintifi/Applicant’s case should be re-opened to allow the filing of the Plaint in Kajiado HCCC No. 27 of 2019 and the Judgment in Kajiado CM ELC No. 86 of 2019. 13. The Plaintifi/Applicant explained that although the documents in question had been referenced during testimony and in his pleadings, they were inadvertently omitted from the filed bundle of documents. The Plaintifi stated that the documents relate to proceedings involving the same parties and the subject matter, and that their production would assist the Court in arriving at a just and informed determination while avoiding the possibility of inconsistent findings. The Respondents opposed the application on the ground that the Plaintifi is merely attempting to fill gaps in his case. 14. I note that the Plaintifi had already made reference to the documents while testifying. The documents are relevant to the dispute herein. The court finds that the explanation that the documents could have been inadvertently omitted during transfer from the High Court to the Environment and Land Court is plausible. The court further notes that only the Plaintifi had testified in the matter. As such, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3399/eng@2026-05-28 2

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Defendants shall have an opportunity to cross-examine the Plaintifi thereon. Any potential prejudice can thus be adequately cured. This being a land matter it is essential that all relevant material is placed before the court to assist it reach a just determination. 15. Accordingly, the Notice of Motion dated 7th November 2025 is hereby allowed on the following terms: i. The Plaintifi’s case is hereby re-opened for the limited purpose of producing the Plaint in Kajiado HCCC No. 27 of 2019 and the Judgment in Kajiado CM ELC No. 86 of 2019 with thrown away costs of Kshs. 20,000 to the 2nd and 3rd Defendants. ii. The Plaintifi shall file and serve the said documents within 30 days of Ruling being uploaded on the Case Tracking System. iii. The Defendants shall be at liberty to cross-examine the Plaintifi on the said documents and, if necessary, file any response thereto within 21 days of service. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF MAY 2026. JUDY OMANGE JUDGE. In The Presence Of: Mr Mbayi for 2nd and 3rd Defendant Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3399/eng@2026-05-28 3

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