Arusei (Suing as the legal administrator of the Estate of the Late Elizabeth Jepkoech Ruto - Deceased) & 2 others v Ruto (Environment and Land Case E016 of 2023) [2026] KEELC 2377 (KLR)
The bottom line
#The Kitale Environment and Land Court halted a land judgment to reinstate a defence, but fined the careless defendant Kshs. 30,000 for the delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the judgment of this court, as scheduled, should be arrested.
- 2.Whether the orders issued on marking the parties' cases as closed should be set aside, varied, or vacated, the defence and counterclaim vacated, and the suit reopened.
- 3.Whether the respondent's witnesses should be recalled for cross-examination by the applicants.
- 4.Whether this court should enlarge time and grant the applicant and his witnesses to file their witness statements and any further statements to comply with Order 11 of the Civil Procedure Rules.
- 5.Who should bear the costs of this application?
Key legal issues
#Whether the scheduled judgment should be arrested
The court arrested the judgment so the suit could be heard on merit
The court noted that judgment delivery is withheld only exceptionally, but found that Articles 48 and 50 guarantee access to justice and fair hearing, and Article 159 together with the ELC Act and Civil Procedure Act call for substantive justice. Given that the defence and counterclaim were never prosecuted and the applicant's counsel failed to cross-examine, justice required halting the judgment and hearing the suit on merit.
Whether the closure orders and reinstatement of the defence and counterclaim should be granted
The orders of 24/2/2026 closing the parties' cases were set aside and the defence and counterclaim reinstated
Order 12 Rule 7 grants the court discretion to set aside orders arising from non-attendance. Applying the tests in John Nahashon Mwangi -vs- Kenya Finance Bank Limited, and bearing in mind that mistakes of counsel may amount to sufficient cause, the court found both the applicant and his counsel at fault but concluded that substantive justice favoured reinstating the defence and counterclaim and recalling the plaintiffs' witnesses for cross-examination only.
Whether to enlarge time for filing witness statements
Leave to file a witness statement was refused
Recall and enlargement of time are discretionary and should not be exercised whimsically. The court found that both the applicant and his counsel were at fault despite the ill health, and that the applicant had not filed his statement despite earlier opportunities, so leave to file statements at that stage was declined.
Legal principles established
#- A court will not routinely withhold delivery of its judgment except in exceptional circumstances
- Mistakes of a legal adviser may amount to sufficient cause
- A party should not suffer the penalty of not having his case heard on merits merely because a mistake has been made
Court orders
#- 1.The judgment scheduled for 29/4/2026 is hereby withheld.
- 2.The orders issued on 24/2/2026 are hereby set aside; the plaintiffs' witnesses shall be recalled for cross-examination only.
- 3.The defendant's defence and counterclaim are reinstated.
- 4.The court declines to grant leave to file a witness statement at this stage.
- 5.Throw away the costs of Kshs. 30,000/= to be borne by the defendant and shall be paid before the next hearing.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution; Sections 3, 4 and 13 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules
Relief refused
#Leave for the applicant and his witnesses to file witness statements and further documents
The court found the applicant and his counsel at fault and declined enlargement of time for filing statements at that late stage
Costs of the application in the applicant's favour
Costs were awarded against the defendant as throw-away costs
Costs
Throw away costs of Kshs. 30,000/= to be borne by the defendant, payable before the next hearing.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A court will not routinely withhold the delivery of its judgment unless under exceptional circumstances.
Justice calls for this court to halt the delivery of its judgment and hear the suit on merit.
The judgment scheduled for 29/4/2026 is hereby withheld.
The orders issued on 24/2/2026 are hereby set aside; the plaintifis' witnesses shall be recalled for cross-examination only.
The defendant's defence and counterclaim are reinstated.
Throw away the costs of Kshs. 30,000/= to be borne by the defendant and shall be paid before the next hearing.
Issues in the judgment
#Judgment does not state the case title, case number or citation; the parties' full names (other than the 1st respondent) are not given
Inconsistent dates in the applicant's affidavit: the hearing is described as occurring on 24/2/2026 in one passage and 24/2/2024 in another
The record indicates counsel was present online but the applicant's affidavit asserts non-attendance and advises counsel not to attend court; the court found counsel 'strangely disappeared from the screen'
Order (b) of the motion seeks arrest of judgment 'in favour of a full, inclusive, and or fair trial' but the relief text is truncated by '… spent.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arusei (Suing as the legal administrator of the Estate of the Late Elizabeth Jepkoech Ruto - Deceased) & 2 others v Ruto (Environment and Land Case E016 of 2023) [2026] KEELC 2377 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2377/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.