Okullo v Atiang (Environment and Land Case E008 of 2024) [2026] KEELC 4271 (KLR) (9 July 2026) (Ruling)

Okullo v Atiang (Environment and Land Case E008 of 2024) [2026] KEELC 4271 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4271 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E008 of 2024 E Asati, J July 9, 2026 Between John Okullo Plaintiff and Kefa Odhiambo Atiang Defendant Ruling 1.The application before the court for determination is the Notice of Motion dated 14th November, 2025, brought by the Defendant pursuant to the provisions of 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. 2.The application seeks an order that the Defendant’s witnesses, namely (1) Joseph Odingo Achuro and (2) Lawi Ndiwa Atito, be allowed to testify and produce their filed witness statements in support of the Defendant’s case. 3.The application is based on the grounds that the testimony of the two witnesses is essential for the just and fair determination of the matter herein. 4.That the witness statements of the two witnesses had been filed and served upon the Plaintiff’s Counsel via email. 5.That the Defendant’s case was inadvertently closed without the testimony of the 2 witnesses owing to the inability of Junior Counsel, who was holding brief for the Defendant’s Counsel on record, to fully address the court on the filing and service of the witness statements. 6.That, unless the court reopens the Defendant’s case and allows the 2 witnesses to testify, grave prejudice shall be occasioned to the Defendant. That, on the other hand, no prejudice shall be occasioned to the Plaintiff. 7.The application was supported by the averments in the Supporting Affidavit of Mercy Awuor O.D. on 14th November, 2025. 8.The Plaintiff filed his Replying Affidavit, sworn on 16th December, 2025, in opposing the application. The Plaintiff’s case is that the application is misleading, dishonest, incompetent, and an abuse of the court process. That when the matter came up for further hearing of the defence case on 12th November, 2025, the Plaintiff raised objections based on Order 3 Rule 2, Order 7 Rule 5, and Order 11 of the Civil Procedure Rules that the two witnesses whom the Defendant intended to call had neither filed nor served their witness statements upon the Plaintiff. 9.That the court heard the objection, upheld it, and closed the defence case. 10.That the allegations in the application that the witness statements were filed and served were false, misleading, and unsupported by evidence. 11.That the Applicant cannot rely on Article 159 of the Constitution to sanitize blatant non-compliance with mandatory procedural rules.That re-opening of the case at this advanced stage would:a.gravely prejudice of finality in litigation;b.reward procedural misconduct; andc.defeat the purpose of Case Management under Order 11 of the Civil Procedure Rules. 12.Pursuant to directions given on 4t May 2026, the application was heard by way of written submissions. Written submissions dated 14th May, 2026, were filed by Awuor Otieno D.M. & Associates Advocates on behalf of the Defendant, while written submissions dated 16th June, 2026, were filed by MOA Advocates LLP on behalf of the Respondent. 13.The record shows that on 12th November 2025, when the Defendant’s case was heard before Hon. Justice Okongo J, as he then was, Mr. Gweth Advocate held brief for Awuor Advocate for the Defendant. 14.The record shows that the matter proceeded to hearing wherein Counsel for the Defendant presented DW3, one Emily Anyango Onyango, who testified and was cross-examined by the plaintiff and re-examined by Mr. Gweth. After the testimony of DW3, the record shows that Counsel for the Defendant closed the Defence case. There is nothing on record to show that Counsel for the Defendant sought to call the two witnesses now sought to be allowed to testify. 15.The record shows further that the court, after closing the Defence case, proceeded to give directions on the filing of closing submissions and the date for mention to confirm the filing of the submissions and taking of a date for judgment. 16.On the court record, I have seen the Defendants’ list of witnesses dated 30th May, 2024. There are five persons listed therein as the witnesses that the Defendant intended to call in the matter. The names of the two persons sought to be allowed to testify are not included in the list of witnesses. 17.The court Case Tracking System (CTS) shows that on 5th July, 2024, the Defendant filed the defendant’s further list of witnesses dated 28th June, 2024 under Order 3 Rule 2 of the Civil Procedure Rules. The list contained the name of Joseph Odinga Aduro. To the list of witnesses was attached a witness statement dated 28th June, 2024, by Joseph Odinga Achoro. 18.Further, on 25th March, 2025, the CTS shows that the Defendant filed Defendant’s Further List of witnesses dated 24th March, 2025, to which was attached a witness statement by the only witness listed, namely Lawi Ndiwa Atito. 19.There is no evidence that leave was sought to file the additional lists of the witness statement. This is contrary to the provision of Order 3 Rule (2) and Order 7 Rule 5 of the Civil Procedure Rules. 20.The application, in essence, seeks the reopening of the defence case to allow the proposed witnesses to testify. In the case of Susan Wavinya Mutavi v Isaac Njoroge & another [2020] KEELC 8 (KLR), the court held as follows regarding the jurisdiction to reopen cases“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. Second, where the proposed re-opening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. Third, the plea for reopening of a case will be rejected if there is an inordinate and unexplained delay on the part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Fifth, the evidence must be such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible.” 21.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. 22.To expedite the disposal of the suit, the following directions are hereby given.i.The suit shall proceed in accordance with the court directions given on 12th November, 2025.ii.The time for parties to file submissions is hereby extended. The Plaintiff shall file and serve his written submissions on the suit within 21 days hereof.iii.The Defendant shall file written submissions within 21 days of service of the Plaintiff’s submissions.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 9TH DAY OF JULY, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence ofAtika.. Court AssistantAwuor for the Defendant/Applicant.N/A for the Plaintiff/Respondent.