Githinji & another v Sojamni Springfields Limited & 2 others (Environment and Land Case 405 of 2017) [2026] KEELC 3505 (KLR)

3. The grounds are on the face of the Application and are set out in paragraph 1 to 16. 4. The Application is supported by the afidavit of Jaoko Alexander Advocate sworn on the 27th February 2026 and a further Afidavit sworn on the 29th March 2026. 5. The Application is opposed. There are grounds of opposition filed by the 1st Defendant dated 8th March 2026. 6. It appears the 2nd Defendant did not file any response to the Notice of Motion. 7. There are grounds of opposition filed by the 3rd Defendant and dated 23rd March 2026. 8. On the 24th March 2026, the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 9. The plaintifi’s/applicant submissions are dated 29th March 2026. Counsel submitted that the Court has inherent powers to make the orders sought as may be necessary to meet the ends of Justice. Reliance is placed on the case of Meshallum Wanguhu v Kamau Kania Civil Appeal No.101 of 1984 I KAR 780 (1987) KLR 51: (1986-1989) EA 593. 10. Counsel further submitted that when the Advocate for the Plaintifis took over the conduct of the matter, the only source where he could get the trial documents was the record filed by the 1st Defendant (being the Appellant in the Court of Appeal ), which record did not contain all the documents as filed by the Plaintifi and most of them were scattered all over, in many record of Appeal volumes making it hard to follow during this retrial of this case. 11. It is submitted that the Defendants will not sufier any prejudice as they will have a chance to cross examine the two witnesses if they so wish. He prays that the application be allowed. 12. The 1st Defendant’s submissions are dated 15th April 2026. Counsel submitted that the Plaintifis are advancing two mutually exclusive propositions; that the witnesses must be recalled to testify and that the witnesses are not being examined in chief at all but merely producing a bundle. 13. It is further submitted that the authority cited by the Plaintifis; Wanguku v Kania is inapplicable and, on its facts, supports the 1st Defendant. It is submitted that what the Plaintifi’s counsel presents is not an exceptional circumstance but a failure of preparation by the Advocate that occurred during the examination of the witnesses. 14. It is also submitted that the Re-opening the record midhearing undermines the finality of evidence and deprives the 1st Defendant of the strategic position it has earned through proper conduct of cross examination. Further that granting the application would stall the proceedings, impose additional costs on all parties and defeat the objective of expeditious disposal which the Court of appeal itself mandated. 15. It is submitted that the threshold requirement is exceptional circumstances and that threshold has not been met regardless of whether the 1st Defendant would sufier prejudice. Further that the 1st Defendant, would be forced to cross examine witnesses who have had weeks to review the questions asked of them, study their own concessions on the record and prepare accordingly. 16. It is submitted that the Plaintifis’ application is a belated attempt to re-enter the witness box after their expert witnesses has been fully cross examined. They pray that the Application be dismissed with costs. 17. It appears the 2nd and 3rd Defendants did not tender any written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3505/eng@2026-06-10 2

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18. I have considered the Notice of Motion, the afidavit in support, the response thereto, the written submissions and the authorities cited. The issue for determination is whether the application is merited. 19. It is on record that the Defendants/Respondents do not oppose prayer No1. of the Motion and the same was allowed on the 9th March 2026 whereupon the plaintifis were given fourteen (14) days to file the trial bundle. 20. Orders 18 Rule 10 of the Court Procedure rules provides that: “ The Court may at all state of the suit recall any witness who has been examined and may, subject to the law of evidence for the time being in force, put such questions to him as the court thinks fit” 21. I have considered the reasons given by the counsel and find that they are plausible. 22. The plaintifis have not closed their case hence the Defendants will have an opportunity to cross examine the said witnesses. 23. In conclusion I find merit in this application and grant the orders sought namely:a. That leave is hereby granted to the 1st, 2nd Plaintifis to recall the expert witnesses namely Charles Lwanga Muyembe and Isaac Lunalo Wirunda who had earlier testified on the 21st January 2026. b. That cost of this application be borne by the 1st and 2nd Plaintifis. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 10TH DAY OF JUNE 2026. L KOMINGOI JUDGE In presence of :Mr. Jaoko for the Plaintifis Mr. H. Opondo for the 1st Defendant. No appearance for the 2nd Defendant Ms. Mbugua for the 3rd Defendant Court Assistant: Derrick/Irene https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3505/eng@2026-06-10 3

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