https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4341

Ogola (Suing as the legal representative of the Estate of John Okello Ngong - Deceased) v Mwalo (Being sued as the legal representative of the Estate of Mariko Mwalo Odero - Deceased) & another (Environment and Land Case E002 of 2023) [2026] KEELC 4341 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4341 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case E002 of 2023 JW Wanyonyi, J July 9, 2026 Between Joyce Auma Ogola (Suing As The Legal Representative Of The Estate Of John Okello Ngong - Deceased) Plaintiff and Agnes Adhiambo Mwalo (Being Sued As The Legal Representative Of The Estate Of Mariko Mwalo Odero - Deceased) 1st Defendant Erick Odhiambo Abang’A 2nd Defendant Ruling 1.Vide an application dated 4th May, 2026, and under the provisions of section 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil procedure Rules, the Applicant seeks for the following orders:a.The order of this Honourable Court made on the 11th day of December, 2025 be set aside and allow inter-parties hearing.b.the order of this Honorable Court made on the 11th December, 2025, be set aside to allow re-opening of the plaintiff's case and leave be granted for the filing of the Survey report out of time.c.upon the grant of order 3 above, this Honourable Court be pleased to grant an order for Survey to be done on land parcel no Kanyada / Kanyabala / 5267 at the earliest date possible pending the hearing and determination of the suit.d.This Honorable Court be pleased to issue an order to OCS Homabay Police Station to provide security during the survey exercise.e.Costs of the application be in the Cause. 2.The Applicant relies on nine (9) grounds on the face of the application. 3.The same is further Supported by the annexed affidavit of Humphrey Obach who states that it is important for the survey to be conducted to demonstrate the nature and extent of easement rights claimed herein as the Court is not privileged to conduct a locus in quo, that it is crucial for the Plaintiff that the acreage occupied by the plaintiff that himself be established before the testimony of the defendants ,and that, no prejudice shall be occasioned to the defendant as they will be accorded a chance to cross-examine the plaintiff on the report generated. 4.The application is opposed through a replying affidavit sworn on 19th May, 2026 by the Respondents herein. 5.The reasons for opposing the application are that: the application is incapable of execution as prayer sought of general survey of suit parcel of land is not specific enough to assist the Court in disposing of the suit, that parties are bound by their pleadings, the applicant ought to have a survey report before filing suit, and the same cannot be sought three (3) years after the applicant has already closed her case. Submissions By Parties. 6.On 20/5/2026 directions were given by the Court and parties were granted given 14 days each to file submissions. 7.The fourteen (14) days were to end on 4th June,2026 which implies the last day of filing by the Applicant was 4th June 2026, since the Court did not clarify whether the period was to run concurrently or successively. However, for the avoidance of doubt, and omission to particularize the manner of filing, the Court will put on the basis that the period was concurrent. 8.However, on 18/6/2026 parties were granted more time to comply by filing a reply to the application and submission. 9.The Applicant's Counsel did file submission on 30-6-2026 while no Submission was filed by the Respondent. 10.The Applicant states that this Court has wide discretion to set aside orders issued and allow for re-opening of the applicants case before Defence case is heard; the Court has inherent powers under Section 1A, 1B and 3A of the Civil procedure Act, and Article 48, 50 and 159 of the Constitution to grant the orders sought, that the applicants case was closed due to mistake of Counsel; that the core issue in dispute is the occupation of land parcel number Kanyada/ Kanyabala/ 5267 where the Applicant claims the entire parcel; and the respondents claim that their families have been in possession; that it is only through a Court order that survey can be conducted and the survey may resolve the dispute ,and ,that land disputes are very emotive in nature and may lead to breach of peace hence the need for security. 11.The Applicant relies on the following Authorities namely Samuel Kiwi Lenz v Housing Finance Co of Kenya LTD & Another [2015] eKLR 3930 (KLR) where the Court retains discretion to allow re-opening of a case, that discretion must be exercised judiciously and in exercising that discretion the Court should ensure that such re-opening does not embarrass or prejudice the opposite party, that the prayer for re-opening will be defeated by in-ordinate and unexplained delay. 12.In Okello v Osho & 3 Others (2026) KEELC 2230 (KLR) the Court stated that it is the duty of a Court of law to guide and lead parties ,and even Counsel ,towards expeditious disposal of cases by avoiding multiplicity of applications and that as security land disputes tend to be very emotive and that the Court does not require evidence of likely breach of peace to order provision of security for enforcement of order. Issues For Determination. 13.Having considered all relevant issues raised in respect of this application, I will address two aspects in determining the prayers sought by the Applicant. 14.The first issue is the power of the Court to re-open a case. 15.A Section 3A of the Civil Procedure Act preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the Court process. 16.Article 50 of the Constitution of Kenya guarantees every party to right to a fair hearing, including the right to adduce and challenge evidence. 17.Article 159(2)(d) obliges Courts to administer justice without undue regard to procedural technicalities. 18.In Mohamed v Mohamed & 3 Others (Petition 7 & 9 of 2018 (Consolidated) [2018] KESC 62 (KLR) 28th September, 2018) Ruling, the Supreme Court of Kenya held that:“We are convinced that disallowing additional evidence would deny the Appellant a fair trial which is non-derogable right under our Constitution. In addition, we are satisfied that allowing any additional evidence is not prejudicial to any party and will be in the interest of justice as the evidence is necessary and crucial in making of a proper judicial finding as to whether the appellant had a requisite academic credentials to vie for the governor of Wajir County which are the core issues before thecourt 19.In the case of Wavinya Mutavi v Isaac Njoroge & Another (2020) KEELC 8 (KLR) the court articulated the said principle as follows:“Over the years Kenya’s superior Courts and courts in the Common additional evidence in a Civil trial court.First , the jurisdiction is a discretionary one and is to be exercised judiciously. In exercising that discretion the court is duty bound to the ensure that the proposed re-opening of a party’s case doesn’t 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 re-opening of a case will be rejected if there isinordinate and unexplained delay on the part of the applicant.Fourth, the applicant is expected to demonstrate that the evidence that he seeks to introduce could not have been obtained without due 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 in the result of the case, though it need not be decisive,Lastly, the evidence must be apparently credible though it need not be incontrovertible.’’ 20.On mistake of Counsel, the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 Others [2014] eKLR held that:“The mistake of Counsel should not be visited upon the party. However, this is not a licence for Counsel to be negligent. We have considered the circumstances of the case and are of the view that the applicant should not be denied the opportunity to have his appeal heard on merit." 21.The High Court in the case of Nuru Ruge Ali & Another versus Edwin Kiptoo ,Malindi , Civil Appeal No. E023 of 2020, held that:“It is not for the Court to restrain from punishing litigants for mistakes or blunders made by their advocates without demonstrating that the claimant to the suit was equally guilty of laches, and that Court's ancillary power to regulate procedure should not be applied in a draconian manner to deny litigants a right to access Court under Article 48 and a right to fair hearing under Article 50 of the Constitution, unless in substantial and compelling circumstances." 22.I now move to address the 2nd issue as to whether the application is merited. 23.I have looked at the record and I note that this matter has partially proceeded to the extent that the plaintiff did testify, called the witnesses and closed her case. 24.It is after the close, and before proceeding with defence hearing that Mr. Obach, Advocate appeared in the matter and raised the issue of acreage on the ground. 25.He raised the issue of a survey and visiting the ground to determine the occupation and acreage. 26.He then moved and filed an application as directed by the Court. 27.In the application and submissions presented in Court, Counsel says that it is crucial that the acreage occupied by the Applicant be established before defence hearing proceeds, and that, no prejudice will be occasioned as they will have an opportunity to cross examine. 28.The plea to re-open the case has been strongly opposed by the Respondent on the ground that the application is incapable of execution as prayer for survey is not specific enough, that the applicant ought to have acquired a report before filing suit, lastly that, and that the same cannot be sought after closure of suit. 29.I note that Counsel who was present in Court never raised the issue of having a survey being done and the issue was only raised after the Applicant's case was laid to rest. 30.I also note that though in submissions filed in Court, Counsel for the Applicant has addressed the issue of mistake of Counsel, the same has not been clearly pointed out in the supporting affidavit. 31.Counsel has not stated whether the mistake was deliberate or out of inadvertence. 32.It should be noted that the jurisdiction to re-open a case is discretionary ,and is to be exercised judiciously with the attendant duty of ensuring that re-opening of a part heard case does not embarrass or prejudice the opposite party. 33.I have considered the nature of the dispute which is a land dispute, and so to add emotive. The Applicant's claim is that she occupies a portion of Title Number Kanyada/Kanyabala/5267 measuring 0.02 Hectares where she has established her home. 34.In her response to the originating summons the Respondent denies that the Applicant has been in exclusive occupation, use or possession of the suit land ,and that it is her family that has been in occupation. 35.She also questions the authenticity of the sale agreement. 36.She further alleges that the land was sold to the 2nd Respondent hence she no longer has any interest therein. 37.The Counsel for the applicant argues that survey is necessary to enable the Court determine whether the Applicant occupies the suit land, and the acreage and on that issue the Respondents will have an opportunity to cross examine. 38.The Applicant says no prejudice shall be occasioned to the Respondent. 39.Having perused the record, I note that on 5/4/2025 the matter proceeded in the absence of the Respondent's Counsel and thereafter by consent made between Counsels, PW1 was recalled for cross examination. 40.I find that the Respondent has already benefited from the magnanimity of the Applicant's Counsel, and he is also bound to reciprocate in the same terms. 41.This Court in allowing the application to re-open the Applicant's case, is guided by the principle that litigation should, as far as possible, be determined on basis of material placed before it, rather than technical omissions or commissions. 42.Having established that the Respondent has had a chunk of the Applicants cake, amity and the principle of reciprocity demands he should also extend an olive branch , indeed any prejudice that may be occasioned can be cured as the Respondent will have an opportunity to respond to the survey report. 43.I therefore make the following orders :i.I hereby set aside the order made on 11/12/2021 closing the Applicant's case and allow the Applicant's case to be re-opened only to the extent of filing a survey report in respect of the suit land.ii.I direct the County Lands Surveyor, Homa Bay, to visit the suit land parcel number Kanyada/Kanyabala/5267 within 30 days from the date hereof with a view of establishing the parties in occupation, land use, the developments done and provide any other information relevant to this case.iii.I also direct that the OCS HomaBay Police Station and the Area Chief do ensure that peace is maintained during the exercise.iv.Costs shall be in the cause. 44.It is so ordered. RULING DATED AND DELIVERED AT HOMABAY ELC VIA TEAMS PLATFORM THIS 9TH DAY OF JULY, 2026.****In The Presence Of:1. M/s Ochieng For The Applicant2. Mr R. Ochieng For The Respondent3. Court Assistant, Ms. Awino JUSTICE J.W WANYONYI – JUDGE