https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5029

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC NO. 107 OF 2019** **JACKSON KIRANDO MUTUNKEI** (Suing as the Legal Representative on behalf of **KERANDU OLE MUTUNKEI- Deceased).............................................................PLAINTIFF** **VERSUS** **EMILIO WANDERI KAHIGA.....................................................................1ST DEFENDANT** **ALICE WANGUI AIDAH.............................................................................2ND DEFENDANT** **MARY WANJIRU GICHANGO..................................................................3RD DEFENDANT** **FRANCIS KIBANDI MUIRURI..................................................................4TH DEFENDANT** **CHIEF LAND REGISTRAR........................................................................5TH DEFENDANT** **THE DISTRICT LAND REGISTRAR, KAJIADO...................................6TH DEFENDANT** **THE HON. ATTORNEY GENERAL..........................................................7TH DEFENDANT** **RULING** ***(In respect of the Notice of Motion application dated 12th May 2026 seeking to re-open the case for the purpose of production of a document)*** **Introduction** 1. Before this court for determination is the Notice of Motion application dated 12th May 2026, brought by the 1st, 2nd, 3rd, and 4th Defendants. The Applicants invoke the provisions of Article 159 of the Constitution of Kenya and the inherent jurisdiction of the Court. The Applicants seek the following orders: 2. **SPENT** 3. **SPENT** 4. **THAT** the 1st - 4th Defendants be permitted to reopen their case solely for the purpose of producing an LCB Consent to transfer dated 20th August 1991 appearing as item 7 on the Defendants’ List of Documents but which was inadvertently omitted in the bundle produced in court. 5. **THAT** the 1st 4th Defendants Submissions filed herewith be admitted out of time. 6. **THAT** the costs of this application be provided for. 7. The application is premised on the grounds set out on its face and is supported by the Affidavit of Emilio Wanderi Kahiga, the 1st Defendant, sworn on 12th May 2026 on his own behalf and with the authority of the 2nd, 3rd, and 4th Defendants. The Deponent asserts that the omission of the Land Control Board Consent document was an inadvertent oversight that was only discovered while preparing submissions, after the Plaintiff took issue with it. The Applicants contend that reopening the case is in the interest of justice so that the Court can render a decision with all materials laid before it, and that no prejudice will be suffered by the Plaintiff that cannot be compensated by way of costs. 8. The application is opposed by the Plaintiff by way of the Replying Affidavit of Jackson Kirando Mutunkei, sworn on 20th May 2026. The Plaintiff avers that the application is misconceived, frivolous, and an abuse of the court process intended to obstruct the expeditious conclusion of a matter that has already proceeded to full hearing and is pending judgment. The Plaintiff argues that the Applicants had ample opportunity to produce the document and are now improperly seeking to remedy evidentiary deficiencies after reading the Plaintiff's written submissions. Furthermore, the Plaintiff asserts that allowing the reopening of the case would occasion grave prejudice; it would compel the Plaintiff to recall witnesses, which is significantly prejudiced by the fact that the original Plaintiff (the seller of the suit property) is now deceased and therefore incapable of being cross-examined on the authenticity of the impugned document. The deceased Plaintiff had already testified and denied the validity and authenticity of the Applicants' exhibit 6 (the Land Control Board application). 9. The 7th Defendant (The Honourable Attorney General), has indicated no opposition to the orders sought. Consequently, this Court is called upon to determine the merits of the Notice of Motion. **Issues for determination** 1. The Court has carefully considered the Notice of Motion dated 12th May 2026, the supporting affidavit, the Replying Affidavit sworn in opposition thereto, and the entire record. The issue falling for determination is whether the 1st to 4th Defendants have established sufficient grounds to warrant the reopening of their case for the limited purpose of producing the Land Control Board Consent dated 20th August 1991 and subsequently whether their written submissions should be admitted out of time. **Analysis and Determination** 1. The law is settled that a trial court retains the discretion to reopen proceedings after the close of a party's case where the interests of justice so demand. Such discretion, however, is not unfettered. It must be exercised judiciously, upon settled legal principles and after balancing the competing interests of the parties. The discretion is intended to advance substantive justice and not to afford a litigant an opportunity to repair a case that has already been concluded. 2. In ***Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & Another [2015] eKLR***, Kasango J., while considering an application to reopen a case, referred with approval to the decision of the Ugandan High Court (Commercial Division) in ***Simba Telecom v Karuhanga & Another [2014] UGHC 98,*** which in turn cited the decision of the High Court of Australia in ***Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256****.* The Australian Court stated that: ***“If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.”*** 1. The Ugandan Court in ***Simba Telecom v Karuhanga & Another (supra)*** further observed: ***“I agree with the holding in the case of Smith v South Wales Bar Association (1992) 176 CLR 256, where it was held that the question of whether additional evidence should be taken at the trial is considered separately from the question of whether the case should be reopened. Consequently, even after the case has been reopened, the court retains its discretionary powers whether to admit any piece of evidence or not.”*** 1. The Court further emphasized the applicable principles in the following terms: ***“In exercising its discretion to reopen, the court must ensure that reopening does not embarrass or prejudice the opposite party. Reopening should not be allowed where it is intended to fill gaps in evidence. Furthermore, such a prayer will be defeated by inordinate and unexplained delay.”*** 1. The rationale underlying the exercise of judicial discretion was aptly explained by the Court of Appeal in ***Patriotic Guards Ltd v James Kipchirchir Sambu [2018] eKLR***, where the Court held that: ***“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious, because the discretion to be exercised is judicial power derived from the law and as opposed to a judge's private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”*** 1. Guided by the foregoing principles, the Court must determine whether the present application satisfies the threshold for reopening proceedings. 2. The Applicants explain that the Land Control Board Consent dated 20th August 1991 was inadvertently omitted during the production of documents at the hearing despite having been disclosed beforehand in their List of Documents. The Court has perused the record and confirms that the document sought to be produced was indeed listed among the documents intended to be relied upon by the Defendants. This lends credence to the Applicants' explanation that the omission was occasioned by inadvertence rather than by any deliberate design to withhold evidence. 3. The Court further notes that the document sought to be introduced relates directly to one of the central issues in dispute, namely whether the transaction relating to the suit property obtained the requisite consent of the Land Control Board. The existence or otherwise of such consent is a matter that goes to the validity of the impugned transaction and is therefore a material issue whose determination is necessary for the just resolution of the dispute. 4. The Plaintiff contends that the application is intended to fill evidentiary gaps after the Defendants became aware of the deficiencies highlighted in the Plaintiff's submissions. The Plaintiff further argues that he will suffer prejudice because the original Plaintiff, who had testified and has since passed away, cannot be recalled to address the authenticity of the proposed document. 5. The Court has carefully weighed these concerns. While prejudice to the opposing party remains a critical consideration, the Court is not persuaded that the prejudice alleged is incapable of being alleviated by appropriate procedural safeguards. The document was disclosed prior to trial, and the Plaintiff has been aware of its existence throughout the proceedings. This is therefore not a case where entirely new evidence is being introduced by surprise. Further, the reopening sought is narrowly confined to the formal production of a single document. The Plaintiff shall retain the right to challenge its admissibility, authenticity, and evidentiary value through cross-examination of the witness producing it and by way of further submissions. Ultimately, the mere admission of the document does not determine its probative value, which remains a matter for the Court after evaluating all the evidence. 6. The Court is equally satisfied that there has been no inordinate delay in bringing the present application. The application was filed promptly upon the Applicants discovering the omission and before the delivery of judgment. The explanation offered for the omission has not been shown to be dishonest or actuated by bad faith. In the Court's assessment, the omission is more appropriately characterized as an inadvertent procedural lapse than as an attempt to deliberately patch up a weak case. 7. This Court is enjoined by Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution to facilitate the just, expeditious and proportionate determination of disputes. In the peculiar circumstances of this case, the interests of substantive justice favour permitting the limited reopening sought so that the dispute may be determined on the basis of all the material evidence intended to be relied upon by the parties, while simultaneously preserving the Plaintiff's right to challenge that evidence. 8. As regards the prayer seeking admission of the Defendants' written submissions filed out of time, the Court observes that submissions do not constitute evidence but merely assist the Court in analyzing the evidence already on record. Since no prejudice has been demonstrated, the Court is satisfied that the same should be admitted. Accordingly, the Court finds merit in the Notice of Motion dated 12th May 2026. 9. The Court makes the following orders: 10. The 1st, 2nd, 3rd and 4th Defendants are granted leave to reopen their case **solely for the limited purpose of producing the Land Control Board Consent dated 20th August 1991**. 11. Upon production of the said document, the Plaintiff shall be at liberty to cross-examine the witness producing the document and, if necessary, tender rebuttal evidence limited strictly to the matters arising from the said document. 12. The parties will be directed on filing of their written submissions after the further hearing. 13. The judgment date previously fixed is vacated. 14. The costs of this application shall abide the outcome of the main suit. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Muthiani h/b for Mr. Moraa for the Plaintiff Mr. Guandaru Thuita for the 1st – 4th Defendants N/A by the AG & other Defendants Court Assistant: Alex **M.D. MWANGI** **JUDGE**