https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3102

Kirimi v Land Registrar Meru Central District & 14 others (Environment and Land Case 3 of 2020 & E001 of 2021 (Consolidated)) [2026] KEELC 3102 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 3102 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case 3 of 2020 & E001 of 2021 (Consolidated) JO Mboya, J May 18, 2026 Between David Kirimi Petitioner and The Land Registrar Meru Central District 1st Respondent The Adjudication Officer, Ruiri/Rwarera Adjudication Section 2nd Respondent The Honourable Attorney General 3rd Respondent Maccu Motors Ltd 4th Respondent Thomas Murugu M’Itwaruchiu 5th Respondent Josphat Thiaine Iburi 6th Respondent Fabian Murugu 7th Respondent Timothy Kimathi David 8th Respondent Fredrick K. Mburugu 9th Respondent Robert Muthaura Gitonga 10th Respondent and Jenaro Nkuubi Interested Party and Ephantus Majau Nchani Respondent and Rosalia Mukiri 1st Interested Party Cicilia Kambura Mukindia 2nd Interested Party Charles Rugoji 3rd Interested Party Ruling 1.What is before me is the Notice of Notion dated the 31.03.2026; brought pursuant to the Section 146 [4] of the Evidence Act; Sections 1A, 1B, 3A and 3B of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 18 Rule 8 of the Civil Procedure Rules, 2010; and Article 159 of the Constitution, 2010; and wherein the Petitioner/Applicant has sought the following reliefs:i.This Application is urgent and should be heard without delay.ii.That this Honorable Court be pleased to order that the case of the 4th Respondent in ELC No. 2 of 2019 1st cross Petitioner in ELC Petition No. 2 of 2019 be re-opened and order that the RW1 [Fredrick Kirima Mbungo] be re-called for further cross examination.iii.That this Honourable court do make such further or better orders as will meet the ends of justice.iv.Costs of this application be in the cause. 2.The subject Application is premised on various grounds. The grounds are: the Petitioner in respect of ELC Petition number 2 of 2019 was being represented by the firm of Ms. Charles Kariuki and Kiome Advocates; subsequently the said Petitioner engaged and instructed the firm of Ms. Kiutha Arithi and Company Advocates; by the time of retaining the named advocate, the 4th Respondent/1st Cross Petitioner had already testified; that there are certain aspects/issues that were not interrogated; the issues are crucial to the determination of the subject dispute; the Petitioner is desirous to interrogate the issues which were omitted; the omission was inadvertent; the omissions can only be redressed by way of recall; and the intended recall shall not prejudice the 4th Respondent/1st cross petitioner. 3.Additionally, it has been posited that: The recall of a witness is at the discretion of the court; the discretion ought to be exercised reasonably; the court needs to afford all the parties due opportunity to address all the issues; and the application has been mounted/made without undue delay. 4.As a result of the foregoing, the petitioner/applicant has invited the court to find and hold that the sufficient cause has been established and demonstrated. Moreover, it has been posited that the dispute before the court touches on and concerns land and hence it will be apposite to afford the Petitioner the opportunity to interrogate the outstanding aspects relative to [sic] the sale of land in question. 5.The Application is supported by the affidavit sworn by Mr. Kiutha Arithi [learned counsel for the petitioner]. The averments in the body of the said affidavit have reiterated/reaffirmed the grounds highlighted in the body of the application. 6.The 4th Respondent/1st Cross Petitioner filed a replying affidavit sworn by one Fredrick Kirimi Mburugu; and wherein same has opposed the said application. The named deponent has highlighted various assertions. The assertions are: the petitioner/applicant was duly represented by counsel; the counsel who was on record undertook due cross examination of the 4th respondent; the 4th Respondents case was thereafter closed; the applicant has not demonstrated a sound basis to warrant the recall of the witness; the recall of a witness is not an automatic right of a party; the intended recall is calculated to plug the gaps that were subsequently noted in the petitioner’s case; and that the 4TH Respondent will be prejudiced. 7.Furthermore, it has been contented that the applicant herein has not met/satisfied the threshold to warrant the exercise of equitable discretion of the court. Further, and in any event, it has been averred that the discretion of the court cannot be exercised in vacuum. 8.Other than the 4th Respondent/1st Cross Petitioner, the other party who was opposed to the application was the Hon. Attorney General on behalf of the 1st, 2nd and 3rd respondent in respect of ELC Petition number 2 of 2019. Notably, the grounds relied upon by the Hon. Attorney General replicate the ones highlighted and relied upon by the 4th respondent. 9.In particular, it has been contented and posited that the intended recall of the Witness for the Fourth Respondent is premised on an endeavor to plug the loopholes in the petitioner’s case. 10.The subject application came up for directions, whereupon the court ordered and directed that the same be heard and disposed of by way of written submissions. In addition, the court also prescribed the timelines for the filing and exchange of theWritten submissions. 11.Learned counsel for the petitioner/applicant filed submissions dated the 02.024.2026 and wherein same has highlighted one key issue. The issue is: Whether the court is seized of the discretion to recall a witness who has since testified for purposes of further cross examination and whether the applicant has established sufficient basis to warrant the exercise of the said discretion. 12.Thereafter, learned counsel for the Applicant has cited and referenced various decisions. The decisions include: Said and another versus Mohammed and 2 others [2026] KECA552; Samuel Kangu Kamau versus Republic [2015] eKLR; Raiply Woods Limited versus Sub County Cooperative Officer Turbo and Soy and 2 others [2026] KECA 334; and Samuel Kiti Lewa versus Housing Finance Company of Kenya Limited [2015] eKLR. 13.Premised on the foregoing, learned counsel for the Applicant has invited the court to find and hold that sufficient basis has been established to warrant the exercise of discretion in favour of the Applicant. To this end, the court has been implored to recall the witness [ RW1] for purposes of further cross examination and where apposite for re-examination. 14.Learned counsel for the 4th Respondent/1st Cross Petitioner has filed written submissions dated 14.04.2026 and wherein same has equally highlighted one issue for consideration. The singular issue raised is: the applicant has not substantiated the purported issues that were omitted and which require the recall. 15.Furthermore, learned counsel for the 4th respondent has submitted that the petitioner/applicant was duly represented by an advocate during the time when RW1 testified. To this end, it has been posited that the said counsel ought to have raised and interrogated [sic] the aspects/matters, that now found the basis for recall of the witness. 16.Further, and in addition, it has been submitted that the subject application is merely intended to give to the petitioner/applicant an opportunity to have a second bite on the cherry. It has been contended that what the applicant is seeking to achieve, is to plug the loopholes and deficiencies, which may have arisen in the petitioner’s case. 17.The court has been invited to find and hold that the applicant has neither met nor established the threshold to warrant the exercise of discretion in favour of the applicant. Moreover, and in any event, it has been reiterated that discretion cannot be issued for mere asking; and without substantiation. 18.Having reviewed the application; the supporting affidavit thereto; the replying affidavit in opposition thereto; and upon taking into account the written submissions by/on behalf of the respective parties, only one issue crystalizes for consideration and determination. The issue is: Whether the applicant has established sufficient cause/basis to warrant the exercise of discretion for recall of RW1 or otherwise. 19.Before venturing to address the singular issue herein, it is apposite to take cognizance of the observation in the case Chief Land Registrar & 4 others v. Nathan Tirop Koech & 4 others [2018] eKLR]. The observation is a grim reminder of the emotive nature of Land and Land matters. 20.The Court of Appeal stated thus:Land ownership and land rights is both a historical and emotive subject in Kenya. A right to hold property is a constitutional right as well as a human right and no person can be deprived of his property except in accordance with the provisions of the Constitution or Statute. The condition precedent to taking away anyone's property is that the authority must ensure compliance with the Constitution and Statutory provisions. 21.Back to the issue for consideration. The dispute beforehand revolves about ownership of land. There are cross cutting claims and counter claims touching on ownership of the disputed properties. In particular, the matter revolves around parcels of lands, which are contended to have been superimposed onto others; and where certificates of titles are said to have been issued to persons who are not in occupation of the disputed parcels of land. There are also claims that the adjudication process that birthed [sic] the impugned Titles, was or may have been; undertaken contrary to the consent order issued by the Court of Appeal. 22.Simply put, the issues that bely the matter beforehand are convoluted and controversial. The issues therefore require due interrogation; consideration and determination. To achieve an exhaustive interrogation, it then means that all the evidence and material, [subject to the provision of the Evidence Act, Chapter 80, Laws of Kenya] ought to be brought to court and thereafter considered. 23.To my mind, the nature of claims and cross claims being raised by and on behalf of the parties deserve due attention. The court is therefore called upon to afford the parties due opportunity to present their respective cases and avail whatever evidence; or material that may assist the court to unravel the controversy. 24.Notably, the applicant herein is before the court contending that there are certain aspects touching on and concerning [sic] the sale agreement to and in favour of the 4th Respondents, which aspects were not addressed during the initial cross examination. It has been posited that the aspects in question are pertinent and material to the petitioner’s case. 25.Though the 4th respondent/1st cross Petitioner contends that the subject application is merely intended to plug the loopholes or the deficiencies in the petitioner’s case, I do not see how the deficiencies [if any] would be plugged. 26.Moreover, it is not lost on me that the cross examination will only be limited to the additional aspects and thereafter the 4th Respondents shall be at liberty to undertake re-examination, where deemed necessary. Pertinently, all the parties will have an opportunity to partake of the right to Fair Hearing. 27.It is imperative to highlight that the law pertaining to and concerning recall of a witness for purposes of further examination in chief or cross examination, where applicable, is different from production of additional evidence, namely; material and documents, which were not tendered at the onset. 28.Be that as it may, I am alive to the fact that the subject application touches and concerns exercise of discretion. I am also alive to the fact that the discretion must be exercised judiciously, objectively and reasonably. For good measure, it is settled law that discretion cannot be exercised on the basis of sympathy or empathy. However, in respect of the instant matter, I am persuaded that the application is meritorious. 29.Moreover, there is no gainsaying that the application has been made promptly and with due promptitude. In this regard, I do not discern any negligence or lapse, that cannot be atoned for. At any rate, I wish to add that the 4th respondent has neither spoken to or highlighted any prejudice; hardship; or injustice that may arise. 30.Finally, it is important to take cognizance of the holding of the Court of Appeal in case of Said and another versus Mohammed and 2 others [2026] KECA 552 where the Court of Appeal discussed the principles guiding the exercise of discretion to recall a witness. 31.The court stated thus:“While the law makes provision for the recall of a witness, such power is discretionary and must be exercised judicially, and not capriciously whimsically, or as a matter of course. The exercise of the discretion is guided by settled principles and is contingent upon the circumstances of each case” 32.Suffice it to state that I have taken into account the nature of disputes beforehand; and the circumstances that have been alluded to. I have equally internalized the import and tenor of Section 146 [4] of the Evidence Act. I am convinced that there shall be no hardship; inconvenience; or miscarriage of justice, if the subject application is allowed. Conclusion 33.Flowing from the analysis in the preceding paragraphs, and taking into account the dictum in the case of Elizabeth Wambui Githinji and 29 others versus Kenya Urban Roads Authority [KURA] [2019] eKLR – per Ouko JA [as he then was]; I am convinced that the applicant has established sufficient cause. Final orders: 34.Consequently, and in the premises, the final orders that commend themselves to the court are:i.The Application dated 31.03.2026 be and is hereby allowed.ii.The 4th Respondent/1st cross petitioner’s case be and is hereby reopened.iii.The 4th Respondent’s Witness [RW1] shall be recalled for further cross examination by learned counsel for the Petitioner/Applicant and thereafter for re-examination by learned counsel for the 4thRespondent.iv.The cross examination shall be limited to the aspect touching on and concerning [sic] the sale of the named properties to the 4th Respondent /1st cross Petitioner and shall not be extended to issues that were duly addressed during the initial cross examination.v.The parties shall agree on whether the recall should be undertaken on the return date [21/05/2026] or shortly thereafter, subject to the availability of RW1.vi.Costs of the Application be and are hereby awarded to the 4th respondent/1st Cross Petitioner only.vii.The costs in terms of clause [vi] are hereby assessed and certified in the sum of Kshs. 20,000/= only payable within 14 days from the date hereof. 35.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 18TH MAY,2026.OGUTTU MBOYA;FCIArb; CPM [MTI-EA].JUDGE.In the Presence of-Mr. Zakayo- Court AssistantMr. Gikunda Kiutha holding for Mr. Kiutha Arithi for the Petitioner/ApplicantMr. Murimi holding brief for Mr. Murango Mwenda for the 4th Respondent/1st Cross Petitioner.Ms. Miranda Senior Litigation Counsel for the 1st , 2nd and 3rd Respondents in ELC Petition Number 2 of 2019.N/A for the rest of the Respondents.N/A for the Interested Parties.