https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1313

Jianxi Water and Hydropower Construction Kenya Ltd v Kiilu (Civil Appeal E090 of 2023) [2026] KECA 1313 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1313 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E090 of 2023 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 10, 2026 Between Jianxi Water and Hydropower Construction Kenya Limited Appellant and Rhoda S Kiilu Respondent (Being an appeal from the order and/or ruling of the Environment and Land Court at Meru (Nzili, J.) delivered on 23rd February, 2022 in E.L.C. Case No. 34 of 2018.) Judgment 1.This appeal is against the ruling and order of the Environment and Land Court (ELC) at Meru (Nzili, J.) delivered on 23rd February, 2022 in ELC Case No. 34 of 2018. 2.The appellant filed an application dated 17th December, 2021 pursuant to Article 159 of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act, and Order 51 of the Civil Procedure Rules, 2010 and sought orders that the Court do: arrest the delivery of the judgment in the suit; grant leave to the appellant to re-open its case and call crucial witnesses who were skipped inadvertently and take their evidence and all the vital documents to be adduced by them; and, issue an order directing the OCS Maua Police Station to provide the appellant’s agents and requisite witnesses with protection when visiting the suit properties for purposes of conducting the requisite assessment for purposes of preparing reports necessary for the hearing and determination of the respondent’s claim. 3.The application was supported by the appellant’s affidavit. In summary the grounds of the application were: the appellant being of foreign entity contracted by the government to construct the roads as set out in the suit and having limited understanding of the Kenyan law sought the legal counsel of a local law firm for purposes of defending its interest against the respondent’s claim; that the matter proceeded for hearing and the respondent called 3 witnesses while the appellant called 2 witnesses; that for reasons well known to his counsel on record, the appellant failed to call witnesses crucial to its case and adduce documents in support of its defence; that it failed to call a qualified surveyor in support of its defence, and an officer from a government surveyor to testify as to whether the suit properties claimed to have been trespassed upon were the correct parcels of land were the correct acreage trespassed upon if at all; and, that it was crucial to adduce the evidence for the proper determination of the claim.. 4.The respondent opposed the application on grounds that the application was made in bad faith and inordinately late; the appellant’s alleged additional evidence was meant to plug in gaps in its case; .the respondent would be prejudiced; the appellant was using the court as a fishing ground for additional evidence; the application was contrary to overriding objective principles under section 1A and 1B of the Civil Procedure Rules, and Article 159 of the Constitution as well as section 3 and 9 of the Environment and Land Court Act; that it was no longer good Law that mistakes of Counsel should not be visited on an innocent litigant; that Pre-trial directions had been taken over 3 years earlier, in 2018, prior to the filing of the application. 5.After considering the application, the Judge dismissed it on 23rd February, 2024. 6.Aggrieved with the said ruling, the appellant preferred an appeal to this Court as evinced in the notice of appeal dated 25th February, 2022. In the memorandum of appeal dated 11th May, 2023, the appellant faults the Judge, inter alia: for failing to allow the appellant to call fresh evidence to ascertain the extent of trespass; for misdirecting himself in holding that the respondent would suffer great injustice should the appellant’s case be reopened as the respondent would not be able to rebut the evidence tendered; failing to appreciate the appellant’s right to a fair hearing as outlined in the Constitution by denying the appellant a chance to call in expert testimony relevant in the determination of the damages awardable to the respondent,; for failing to appreciate that the appellant had admitted it trespassed into the respondent’s land; and, for failing to find that the re-opening of the appellant’s case would allow the court arrive at a just and informed determination of the damages awardable to the respondent. 7.At the virtual hearing of the appeal, present for the appellant was learned counsel Mr. Kirundi with learned counsel Ms. Matu, while learned counsel Mr. Muthomi was present for the respondent. Counsel relied on their respective written submissions dated 17th September, 2024 and 23rd September, 2024 respectively, with brief oral highlighting. 8.Mr. Kirundi, while admitting that the appellant failed to mount a defence at the trial court, by failing to take advantage of the opportunity accorded to it to amend its defence, urged that the learned Judge should have allowed the request to reopen the defence case for additional evidence as that was in his power to do. He urged that the expert witnesses needed to be called were necessary to accurately assess the volume of murram extracted. The appellant relied on the case of Raindrops Limited vs. County Government of Kilifi [2020] eKLR, which quoted the case of Cason vs. State 140 MD App 379 [2001] that provides the principles that guide the court in determining whether to reopen a matter. 9.Mr. Kirundi relied on the case by the Supreme Court of India Indru Ramchand Bharvani & Others vs. Union of India & Others, 1988 SCR Supl (1) 544, 555, which highlights the components of what entails the right to fair hearing, and urged that the trial court denied it an opportunity to be heard by locking it out from adducing fresh evidence, and by proceeding to issue judgment in the favor of the respondent. 10.In response to the Court’s concern as to the timing of the appellant’s request for expert witnesses after the close of the case, Mr. Kirundi submitted that justice demanded an opportunity be granted to call fresh evidence, and urged that more so because the case involved a public interest aspect. He asserted that the appellant’s expert witnesses were unable to access the extraction area for an accurate evaluation of the volume of murram excavated and its value. It was argued that if the respondent were to suffer any prejudice as a result of the re-opening of the appellant’s case, then she could easily have been compensated by an award of damages, which the appellant was willing to concede to. 11.Mr. Kirundi added that the court was aware that the appellant had changed advocates, and that the change led to significant gaps in the evidence it intended to present. He stated that the appellant’s previous advocate failed to call vital witnesses and that his team was only made aware of that need after taking over the case. Counsel admitted that they missed the opportunity to engage in the proceedings prior to the judgment. 12.Mr. Kirundi reaffirmed that it was not the intention of the appellant to lay blame on the previous counsel for their oversight, but to emphasize that the appellant needed an opportunity to re-open its case in the circumstances. In conclusion, the appellant urged this Court to find its appeal merited and allow the same with costs. 13.Mr. Muthomi, for the respondent, contended that the appeal was based on a misunderstanding regarding the nature of the appellant’s application to reopen the case. He urged that the purpose of the appellant’s motion was not to have a judgment set aside but rather to introduce new or fresh evidence and witnesses, post-judgment, evidence it did not have but was seeking to be given time to collect. He argued that the appellant showed a lack of responsibility by failing to present their case adequately. He noted that Mr. Kirundi was the 3rd counsel appointed by the appellant in the case and argued that, the appellant still blamed the previous two for the same failure. 14.The respondent argued that the appellant failed to meet the threshold for reopening of its case, placing reliance on several cases: Cyrus Shakalaga Khwa Jirongo vs. Soy Developers Limited & 9 Others [2020] eKLR; Susan Wavinya Mutari vs. Isaac Njoroge & Another [2020] eKLR and Samuel Kiti Lewis vs. Housing Finance Corporation of Kenya [2015] eKLR. It was contended that the appellant’s reasoning for reopening of the case included mistakes by their former advocates, and its limited understanding of Kenyan laws, which the Judge found insufficient and accusatory. 15.Counsel urged that the appellant crafted prayer number 3 of its motion in a manner to suggest that the defence witnesses it sought to call, their statements, the documents they would rely on and produce in evidence had already been filed in Court but were, in its own words, “inadvertently skipped” during the hearing of the case. Counsel urged that that was far from the truth. He submitted that the trial court rightly found that the appellant did not possess the evidence it sought to introduce, and that it had ample opportunity during the trial to gather and present it. 16.The respondent placed reliance on these cases: Apungu Arthur Kibira vs. Independent Electoral and Boundaries Commission & 2 Others [2019) eKLR, United India Insurance Co. Ltd, Kenindia Insurance Co Ltd vs. East African Underwriters (Kenya) Ltd [1985] eKLR, and Mike Mbuvi Sonko vs. County Assembly of Nairobi City & 11 Others [2022] eKLR, and urged this Court not to interfere with the trial court’s exercise of discretionary powers. 17.Lastly, it was argued that judgment was delivered on 9th March, 2022, after the court declined their application to reopen the case, and that the appellant has not appealed against it. Counsel urged that the respondent had demonstrated that the appellant was undeserving of discretion by the trial court because it was abusing the court process, and neither did it deserve the discretion of this Court. The respondent submitted that the appeal lacked merit and prayed for its dismissal with costs. 18.We have carefully considered the record of appeal, the rival oral and written submissions, and the authorities relied upon. Having done so we find that what falls for our determination is whether the appellant met the threshold for the reopening of its case. 19.This is a first appeal and our mandate as a first appellate court is well settled. We are required to re-appraise the evidence and draw our own independent inferences and conclusions. This mandate was explained in Abok James Odera T/A A. J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 20.We noted that the appeal before this Court challenges the manner in which the Judge of the ELC exercised its discretion in dismissing the application which sought to arrest the delivery of the judgment in the suit, and for leave to re-open the defence case. 21.This Court in Mulemi vs. Angweye & Another (Civil Appeal 170 of 2016) [2021] KECA 214 (KLR) (Civ) (5 November 2021) (Judgment) while discussing the principles the Court should apply to determine whether to interfere with the exercise of discretion of courts below observed as follows:In Mbogo & Another vs. Shah [1968] E.A 93; at page 94, paragraph H - 1 Sir Clement De Lestang V.P had this to say:I think it is well settled that this Court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”See also Sir Charles Newbold, P., in the same decision at page 96 paragraph G-H, where he expressed himself as follows:“For myself, I like to put it in the words that a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”In reiteration of the above principle, the Court in the United India Insurance Company Limited vs. East African Underwriters Kenya Ltd [1985] KLR 898 was explicit that interference with exercise of judicial discretion only arises where there is clear demonstration of misdirection in law, misapprehension of the facts, taking into consideration factors the Court ought not to have taken into consideration or failure to take into consideration factors that ought to have been taken into consideration or looking at the decision generally. The only plausible conclusion reached is that the decision albeit a discretionary one is plainly wrong.” 22.The Supreme Court in the cited case of Apungu Arthur Kibira vs. Independent Electoral and Boundaries Commission & 2 Others [2019] eKLR, held as follows:“We reiterate that in an appeal from a decision based on an exercise of discretionary powers, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (Kacem) where it was held [paragraph 32]:In this context general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case, the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.”[We are well guided]. 23.Being an appeal against the exercise of discretion, in order to succeed, the appellant must meet the strict criteria by establishing that the Judge fell into error of law or principle; took into account irrelevant consideration, failed to take into account relevant consideration, misapprehended the facts; and/or, the decision was plainly wrong. 24.The appellant argued that the Judge denied their request to reopen the case for additional evidence to call expert witnesses, which, he claimed, was necessary to accurately assess the volume of murram extracted. The appellant relied on the case of Raindrops Limited vs. County Government of Kilifi (supra) for the proposition that the Judge needed to consider whether good cause was shown, whether the new evidence is significant, whether it will prejudice the other party, and whether the evidence is controversial in nature. Counsel urged that the lack of expert testimony had prevented it from receiving a fair assessment of the degree of trespass and the materials excavated from the respondent’s land. 25.Regarding the application before him, the Judge observed:“80.The issue before the court is novel in the sense that the reason of arresting of the Judgment is pegged on the applicant’s request to seek for the re-opening of the defence case, not for the purposes of recalling witnesses as provided under section 146 (c) of the Evidence Act as read together with Order 18 Rule 10, but to be given an opportunity to go and look for that evidence, at the locus in quo, extract it, prepare reports and subsequently file the same before court and eventually to testify before the court and call those witnesses as expert witnesses.99.On the contrary, the applicant in essence is simply seeking to reopen the case, to be granted security and unlimited access to enter into the plaintiff’s premises in dispute and procure evidence which shall be converted as expert evidence.100.As it were my understanding of the application before court is that the applicant does not possess the alleged evidence as at now and can only access it if granted the orders sought and the plaintiff is compelled to grant the applicant unrestricted access to her premises for undisclosed period of time so that evidence can be collected as to the parcels, acreage, degree of interference, quality and quantity of the materials allegedly extracted by the defendant from her suit parcels in 2018 and lastly to be produced before court.” 26.Earlier in the judgment, the Judge observed thus:“05.The defence case all along has been that the suit parcels have never belonged to the plaintiff but one Ntoiti who they dwelt with by entering into a lease agreement and which they fully compensated him for the extracted materials and hence they insisted both in its pleading and defence testimony that they had nothing to do with the plaintiff who ought to have directed her claim against the person who was at the time physically in occupation and purported to be the genuine owner of the parcels of land. “ 27.The Judge considered the events in the case from the filing of the suit and the pleadings by both parties, the pre-trial conference up to the time of filing the application for re- opening the case and observed:106.The court granted leave to the defendant to amend the defence but they opted not to do so. The supporting affidavit to the application herein as looked at alongside the written submissions are completely at variance with each other and by extension the defence.108.There is nowhere in the pleadings the defendant admitted ever innocently and uncourteously ever trespassed into the plaintiff’s parcel of land. So to make a submission that by granting the orders sought the court would be allowing for the extraction and bringing on board evidence to assist the court to determine only the damages payable since the issue of liability is admitted and or undisputed is not only untrue but also misleading.111.The applicant does not say why he did not expect the evidence to be relevant or useful in the first instance. It does not state why since 2018, they did not see the need of collecting and or availing before the court the evidence especially by the time the defence was filed yet the law required that all witness statements, list of witnesses and list of documents be filed alongside the defence and if not so 15 days before pretrial conference. 28.The Judge considered the opportunity the appellant had to call the evidence, first after the pre-trial conference and in between up to the time the case was heard. How it proceeded to call its evidence in defence of two witnesses. Having done so, and having taken dates for filing of final submissions and a judgment date, the appellant had a lot of explanation to make. As the Judge observed, the appellant did not offer any explanation to show at what point it realized it needed to re- open the defence case, and for what reason. It did not offer any explanation for the delay in bringing the application after the case was closed. 29.The Judge appreciated that the application was problematic for reason, it sought to re-open the case to adduce evidence, however its pleadings were contradictory as they showed that by inadvertence the appellant failed to call witnesses and adduce documentary evidence, giving the impression it already had the evidence it required to adduce, either with it or filed in court; in the same breath under prayer 3 of the application it sought an order directed at the police to escort witnesses to the locus in quo to carry out assessment, valuation and collect evidence; and make reports to assist the Judge ascertain the correct award to make in favour of the respondent. It is clear from these facts that the appellant was not candid and that it maintained inconsistent positions in its pleadings and also in its submissions. 30.We are aware that the court reserves the right to exercise its discretion to allow the re-opening of a case. In Samuel Kiti Lewa vs. Housing Finance Co. of Kenya Ltd & Another [2015] KEHC 3930 (KLR), the Court held:“The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion the court should ensure that such re-opening does not embarrass or prejudice the opposite. In that regards re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also such prayer for re-opening of the case will be defeated by in ordinate and unexplained delay.” 31.The appellant needed to establish the strict criteria of demonstrating that the Judge fell into error of law or principle; took into account irrelevant consideration; failed to take account of relevant consideration; misapprehended the facts; and/or, the decision was plainly wrong. The appellant did not bring its application within the criteria set, rather it argued generally. 32.We have considered submissions by both parties and the ruling of the Judge and find nothing to show that the Judge fell into any error in the exercise of his discretion. The Judge analysed the application against the facts of the case. From the record the case started in 2018, and as the Judge observed, the application was being made in 2022, inordinately late, without a reasonable explanation or excuse for the delay. Taking into account the respondent’s claim, and the appellant’s change in its earlier position, which was that the respondent was not the owner of the land; and it seeking to be allowed to collect evidence and assess the amount of murram excavated from the respondent’s land and its value, in order to assist the court, we agree with the trial Judge that to allow the application would have prejudiced the respondent as she would be faced with new evidence. Furthermore, the appellant was asking to be allowed entry into the respondent’s property with third parties to carry out assessments of unknown nature. That was going to inconvenience the respondent for an unknown period of time, and in addition there was likelihood that the case would end up taking inordinately long to be concluded. 33.We have considered this appeal and find that the Judge exercised his discretion within the legal principles and the law; he balanced the interest of both sides, took into account relevant facts and arrived at the correct decision that the appellant had failed to meet the requisite threshold for such application, and that his application was unmerited. 35.We find that this appeal has no merit and is dismissed in its entirety with costs to the respondent. DATED AND DELIVERED AT NYERI THIS 10TH DAY OF JULY, 2026.S. ole KANTAI………………………………JUDGE OF APPEALJ. LESIIT………………………………JUDGE OF APPEALALI – ARONI………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR