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ELCDismissedNot stated in judgment

Omicron Holdings Limited v Attorney General & 3 others (Environment and Land Case 1191 of 2016) [2026] KEELC 615 (KLR)

Environment and Land Court
11 February 2026
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to let a landowner recall its witness to produce a title document obtained only after the case had started.

What this practically means

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Executive summary

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The Plaintiff, by Notice of Motion dated 15th July 2025, sought to recall its witness, Joseph Njunge Mukuriae (PW1), to produce recently obtained documents: an official search for LR No. 23364 (IR No. 76643), a Certificate of Lease for Nairobi/Block 180/609 (formerly LR No. 23364/36), and the corresponding lease document. PW1 had testified and been cross-examined on 19th February 2025. The Plaintiff argued the documents were issued by the Government and would cause no prejudice, invoking Article 159(2)(d) of the Constitution and sections 1A and 1B of the Civil Procedure Act on substantive justice. The 1st Defendant, through Daniel Mutuku, opposed, noting the suit was filed in September 2016 claiming registered proprietorship of LR No. 23364/36, yet Ministry of Lands records showed the parcel had never been registered; PW1's testimony that a title existed was untrue, and the Certificate of Lease was processed during the pendency of the suit, allegedly fraudulently and in breach of lis pendens. The Attorney General submitted recall is discretionary and the application sought to fill gaps exposed in cross-examination, relying on among others Patriotic Guards Limited v James Kipchirchir Sambu and Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another. Justice Christine Ochieng framed one issue: whether PW1 should be recalled to produce additional evidence. Holding that recall is discretionary, the court found PW1's statement about the title was untrue, that processing the title during the pendency of the suit offended the doctrine of lis pendens, and that allowing recall would amount to stealing a match on the Defendants. The Plaintiff failed to offer plausible reasons for not processing the title before filing suit. The application was dismissed with costs on 11th February 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff's witness (PW1) should be recalled to produce additional evidence

Key legal issues

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01

Whether the Plaintiff's witness should be recalled to produce additional evidence (Certificate of Lease, lease document and official search)

Holding

Application dismissed; the Plaintiff failed to meet the criteria for recalling its witness, the documents having been procured during the pendency of the suit to cover gaps in its case.

Reasoning

Recall of a witness is discretionary under Order 18 Rule 10 of the Civil Procedure Rules and section 146 of the Evidence Act. PW1 had testified on 19th February 2025 that a Certificate of title existed when in fact none had been processed. The Plaintiff then obtained the Certificate of Lease during the pendency of the suit, offending lis pendens, and gave no plausible reason for not processing it before filing suit in 2016. Allowing recall would amount to stealing a match on the Defendants and would be prejudicial.

p. 4

Legal principles established

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  • A party who procures title documents during the pendency of litigation, after its witness has testified, offends the doctrine of lis pendens and will not be permitted to recall a witness to produce them

Court orders

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  1. 1.Notice of Motion dated 15th July 2025 dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Order 18 Rule 10 of the Civil Procedure Rules and section 146 of the Evidence Act

Relief refused

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Recall of PW1 Joseph Njunge Mukuriae to produce the official search, certificate of lease and lease document for Nairobi/Block 180/609

The Certificate of Lease was procured during the pendency of the suit after PW1 had testified, offending lis pendens and amounting to an attempt to fill gaps in the Plaintiff's case

p. 4

Costs

Application dismissed with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the foregoing, I find the Notice of Motion dated the 15th July 2025 unmerited and will proceed to dismiss it with costs.
p. 4Final orders - dismissal of application
by the Plaintifi processing the title to the suit land during the pendency of this suit, it ofiends the doctrine of lis pendens which bars parties from transferring or dealing with immovable property that is currently subject to active litigation
p. 4Lis pendens
it will be prejudicial to the Defendants if the Plaintifi was allowed to recall PW1 and produce the Certificate of Lease to the suit property, which was procured after PW1 had testified. I opine that it will amount to stealing a match against the Defendants.
p. 4Prejudice and stealing a match

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omicron Holdings Limited v Attorney General & 3 others (Environment and Land Case 1191 of 2016) [2026] KEELC 615 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/615/eng@2026-02-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.