Okullo v Atiang (Environment and Land Case E008 of 2024) [2026] KEELC 4271 (KLR)
The bottom line
#The Environment and Land Court in Kisumu refused to reopen a closed defence case because the defendant missed procedural steps and wanted to fill evidence gaps.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should exercise its discretion to reopen the defence case
The application was declined because none of the criteria for reopening a case were demonstrated
The court adopted the criteria in Susan Wavinya Mutavi v Isaac Njoroge & another: the discretion is judicial; reopening to fill gaps is impermissible; delay must be explained; the evidence must have been obtainable with reasonable diligence and be capable of influencing the result. On the record, the Defence case had been closed by counsel after DW3 testified, with nothing showing a request to call the two witnesses; the witnesses were absent from the original list, and the further lists and statements were filed without leave, contrary to Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules. The court found none of the grounds demonstrated and declined the application.
Whether the witness statements of the two proposed witnesses had been filed and served
Although further lists of witnesses and statements appeared on the court Case Tracking System, there was no evidence of leave to file them, and no proof of the alleged service
The CTS showed a further list of witnesses dated 28th June 2024 naming Joseph Odinga Aduro with an attached statement, and a further list dated 24th March 2025 with the statement of Lawi Ndiwa Atito. However, the court found no evidence that leave was sought to file the additional lists and statements, contrary to Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules. The court also noted the original list of witnesses dated 30th May 2024 did not include the two persons sought to be called.
Legal principles established
#- The jurisdiction to reopen a case is discretionary and must be exercised judiciously against settled criteria, including absence of prejudice to the opposite party, no filling of evidentiary gaps, no inordinate unexplained delay, due diligence, importance of the evidence, and apparent credibility
- Article 159 of the Constitution cannot be relied upon to cure blatant non-compliance with mandatory procedural rules
Court orders
#- 1.The application to reopen the defence case is declined
- 2.Each party shall bear its own costs of the application
- 3.The suit shall proceed in accordance with the court directions given on 12th November 2025
- 4.The time for parties to file submissions is extended; the Plaintiff to file and serve written submissions within 21 days hereof
- 5.The Defendant to file written submissions within 21 days of service of the Plaintiff's submissions
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya, section 3A of the Civil Procedure Act and Order 18 Rule 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okullo v Atiang (Environment and Land Case E008 of 2024) [2026] KEELC 4271 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4271/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.