https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11444

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION CAUSE NO. E024 OF 2022** **IN THE MATTER OF THE ESTATE OF GIBSON MWANGI WANJOHI (DECEASED)** ## **MARY WAMBUI MWANGI………………………………..…… PETITIONER** ## **VERSUS** ## **ROSEMARY WAMUYU MWANGI………………..…………1ST PROTESTOR** ## **CATHERINE WANJIKU MWANGI……….………….……2ND PROTESTOR** ## **AURELIA MUTHONI MWANGI..……................................ 3RD PROTESTOR** ## **ANN WAIRIMA NDERITU..……........................................ 4TH PROTESTOR** **PATRICK WANJOHI MWANGI…………………….………5TH PROTESTOR** **RULING** 1. This ruling is in respect of 2 applications filed by the Petitioner. The first application is dated 21.4.2026 and the second application is dated 23.4.2026. 2. In the application dated 21.4.2026, the Petitioner sought the following reliefs: 3. The Petitioner be granted leave to file additional documents in support of her case. 4. Further list of documents annexed be duly deemed filed upon payment of fees. 5. Court be pleased to grant directions including opening of the Protestors’ case for the purpose of filing responses to the additional evidence of the Petitioner and for cross-examination. 6. The application dated 23.4.2026 sought the following reliefs: 7. Spent 8. Spent 9. The Petitioner’s application dated 21.4.2026 be deemed duly filed to be heard on priority. 10. The court be pleased to reopen the Petitioner’s case. 11. The applications were supported by the respective affidavits of the Petitioner which materially deposed as follows: 12. The Petitioner discovered new evidence namely audio recording pursuant to a family meeting on 12.6.2021. 13. The said evidence was not in her knowledge at the time of filing the pleadings or at the hearing. 14. The material is crucial and goes to the root of the dispute. 15. The application is in good faith and is not meant to fill gaps. 16. The Protestors will not be prejudiced as they can reopen their case. 17. The matter was scheduled for hearing on 21.4.2026 when counsel for the Petitioner sought adjournment to file additional documents, which were filed on the same date at 2.16 pm. 18. The court, however, closed the Petitioner’s case and gave directions for filing submissions. 19. The application was filed timeously. 20. The Petitioners' right under Article 50 of the Constitution will be prejudiced if condemned without a hearing. 1. The Protestors filed their Replying Affidavit sworn by the 1st Protestor on 22.5.2026 by which it was deposed as follows: 2. The Petitioner did not give a cogent reason for adjourning the matter and the relevance of the material to be adduced was not laid before the Court. 3. Counsel for the Petitioner had her witness in court but chose not to proceed with the hearing. 4. Counsel elected to walk away in a huff together with her witnesses. 5. The court is required to expeditiously dispose of matters under Article 159 of the Constitution. 6. The Application will prejudice the Protestors who have testified and closed their case. Submissions 1. The Petitioner filed submissions dated 17.6.2026. It was submitted that the court granted the Petitioner a short timeline to file the application for leave to adduce more evidence, which the Applicant’s lawyer could not manage as she was in physical court. The court then closed the Petitioner’s case in the intervening period. This was tantamount to denying the Petitioner a fair hearing under Article 50 of the Constitution. Reliance was placed inter alia on the case of [James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/470/eng%402016-06-17) 1. It was submitted that there was sufficient cause for the court to exercise discretion in favour of the Petitioner. She cited inter alia [**In re Estate of Augustine Kimenjo Boen (Deceased) [2025] KEHC 6652 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/6652/eng%402025-05-23)**.** 2. The Protestors also filed submissions dated 9.6.2026. It was submitted that the Petitioner had not satisfied the threshold for reopening proceedings to enable exercise of the discretion of the court. They cited *Shah Vs Mbogo (1967) EA 116,* based on which it was submitted that judicial discretion could not aid a party to delay the course of justice. 3. The Petitioner, it was submitted, had not satisfied the threshold for adducing additional evidence. The Petitioner squandered the chance given for hearing and could not be assisted by Article 50 of the Constitution. 4. They submitted that the Protestors would be prejudiced as they had already closed their case. Analysis 1. The Petitioner maintained that she had satisfied the threshold for reopening the case and adducing new evidence contained in the audio recordings. The Protestors, on the other hand, objected and submitted that the Petitioner had not demonstrated the significance of the new evidence, why it was not timely availed and in fact had squandered the chance given by walking away on the face of the court on 21.4.2026 when the matter came up for hearing in the case of the Protestors. 2. The Petitioner had to first establish a basis for reopening the case before adding new evidence in order to win the discretion of the court. In the persuasive case of [**In re Estate of Jotham Njiru Jonah (Deceased) [2024] KEHC 6965 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6965/eng%402024-06-11), SM Githinji J, stated as follows: Whether or not to reopen a case is the discretion of the court, which discretion ought to be exercised judiciously. In Susan Wavinya Mutavi v Isaac Njoroge & another [2020] eKLR, the Court held that-“Over the years, Kenya’s superior courts and courts in the Commonwealth have developed principles which guide the exercise of jurisdiction to re-open a case and receive 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 ensure that the proposed re-opening of a party’s case does 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 is inordinate and unexplained delay on the part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable 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 on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible.” 6.Similarly, in Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR, the Court observed as follows; -“Uganda High Court, Commercial Division in the case of Simba Telecom –v- Karuhanga & anor (2014) UGHC 98 had occasion to consider an application to re-open the case for purpose of submitting fresh evidence. That court referred to an Australian Case Smith –Versus- New South Wales [1992] HCA 36; (1992) 176 CLR 256 where it was held:“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 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.”The Ugandan Court in the case Simba Telecom (supra) held thus:“I agree with the holding in the case of Smith Versus 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.” …..The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also such prayer for re-opening of the case will be defeated by inordinate and unexplained delay.” 1. Once the Petitioner satisfied the court that the case should be reopened, the court then retained the discretion to admit or reject additional evidence. In the Ugandan case of **Simba Telecom (supra)** the court proceeded thus: **“I agree with the holding in the case of Smith Versus 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 matter came up for hearing the case of the Petitioner on 21.4.2026. The Protestors had already been heard and closed their case. There was no application on record for reopening the case prior to 21.4.2026 when the matter was called out. 2. It would appear that the Petitioner felt that there were some gaps left in her case after the evidence of the Protestors which she was hoping she would fill. This could not be the basis on which the intention to exercise the court’s discretion in allowing a party to reopen her case would be grounded. 3. The Protestors made their conscious decision to close their case, and I do not see why they should be prejudiced by the change of mind of the Petitioner. If the court were to liberally indulge parties when they continuously change their mind in the course of proceedings, no case will ever end. 4. Parties must live by the conscious choices that they make at the hearing of their cases. In this instance, the Petitioner made a choice not to call witnesses who were available in court, and the court closed her case on application by the Protestors. 5. As the Protestors had already testified and closed their case, the hurdle at this stage of the case is much higher than in an instance where the Petitioner is applying to reopen her case before the Protestors have testified. The court in [**Kebande v Arasa [2024] KEELC 7103 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7103/eng%402024-10-29) stated as follows: It will need quite a compelling case to allow a plaintiff reopen his case after a defendant has already testified, presented his evidence and witnesses, and has closed his case. The hurdle at this stage of the case is much higher that in an instance where the plaintiff is applying to reopen his case before the defendant has testified. It should be appreciated that a defendant or respondent responds to the case of the plaintiff/applicant as presented. A defendant may even opt not to call evidence based on what the plaintiff has presented, or can decide to not call other witnesses depending on the evidence that the applicant has tabled. There can be great prejudice to a defendant if a plaintiff is allowed to reopen his case after the defendant has already closed his. It would appear in our case that the respondent did not see it necessary to call her surveyor witness or present a survey report given that the applicant had presented none. 1. The guiding principle in determining whether to grant leave to adduce new evidence is the proportionality and prejudice of allowing the additional evidence. In the case of **Mohamed Abdi Mohamud v. Ahmed Abdullahi Mohamad & 3 Others** [2018] eKLR, the Supreme Court stated circumstances under which new evidence may be taken on appeal, thus: **(a) The additional evidence must be directly relevant to the matter before the court and be in the interests of justice;** **(b) It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;** **(c) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;** **(d) It must be capable of removing any vagueness or doubt over the case and have a direct bearing on the main issue in the suit;** **(e) The evidence must be credible in the sense that it is capable of belief;** **(f) The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;** **(g) If the evidence discloses a strong prima facie case of willful deception to the Court;** **(h) The evidence must be needful and should not be for the purposes of removing lacunae and filling gaps in evidence.** **(i) The evidence is not intended to enable an unsuccessful party at the trial to make a fresh case on appeal, fill up omissions or patch up the weak points in his or her case.** **(j) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.** 1. This court is tasked to assess the balance between the significance of the additional evidence on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. 2. Despite the foregoing, the Court may only allow additional evidence on a case-by-case basis and, even then, sparingly, with abundant caution. The power to admit additional or new evidence is exercised sparingly and only in exceptional circumstances. 3. The Petitioner was present in court with her witnesses and her advocate was also present when the matter was called out for hearing on 21.4.2026. The Petitioner and her witnesses walked out of the court. Their advocate walked out too. Despite the walkout, the court did not descend into the arena to punish anyone. The case proceeded. This court in [**Victoria Pumps Limited & another v Kenya Ports Authority & 4 others [2023] KEHC 23746 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/23746/eng%402023-10-18) stated thus: The court is both a court of law and equity. It is never the duty of the court to whimsically vary the orders of the court. The prayer that the Plaintiff be allowed to cross-examine defence witnesses is summarily rejected. The Plaintiff and his counsel were in court. They were denied an adjournment; they walked away. They did not just walk away; the court was asked to record that the advocate was now walking away and now walking back. This was not only cavalier but actual contempt on the face of the court. 29. The court did not, however, get moved, and it had more important national business to transact, dispensing justice. We are called to high offices as priests of justice to serve the people of Kenya. Anything that derails the same is anathema to progress and good conscience. By walking away from court, the Plaintiff and his counsel simply threw away the right to cross-examine. 30. I find no good reason to re-open the case. 1. I see no way in which the evidence proposed to be adduced is likely to have a direct impact on the outcome of this case. The challenge is on the signatures on the will, which, if found inauthentic, will invalidate the will, with the consequence that the court shall take no further step to interpret the content of the will. The Petitioner slept on her laurels and has not proved that the said evidence could not have been obtained with reasonable due diligence for use at the trial or could not have been produced based on a valid reason. Secondly, the evidence has been gathered after the hearing of the Protestors’ case with a clear purpose of removing lacunae and filling the gaps in evidence earlier presented by the Petitioner. 2. For the above reasons, the two applications are not merited and fail. Determination 1. In the upshot, I make the following orders: 2. The application dated 21.4.2026 is not merited and is dismissed. 3. The application dated 23.4.2026 is not merited and is dismissed. 4. Each Protestor shall have disbursements of Kshs. 15,000/= payable by the Petitioner. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **23rd** day of **July** the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Ms. Omenya for Ms. Wangeci for the Petitioner Mr. Kamau for the 1st, 2nd, 3rd, and 5th Protestors Mr. M. Waweru for the 4th and 6th Protestors Court Assistant – Timothy