[2024] KEHC 15489 (KLR)
The court held that the plaintiffs had not closed their case and that PW2 had already been lined up as a witness from the outset. The omission of the report was inadvertent, and its production would not fill any gaps in the evidence already adduced by PW1. The defendant would not be prejudiced as it would have the...
Source-derived case information.
- Citation
- [2024] KEHC 15489 (KLR)
- Parties
- Plaintiff: Autofine Limited; Plaintiff: Peninah Njeri Nduati; Plaintiff: Julia Mwihaki Kinandu; Defendant: Equity Bank (Kenya) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Case E092 of 2020
- Procedural Posture
- Commercial Case / Interlocutory Application Ruling on Admissibility of Expert Report
- Outcome
- Application allowed. Leave granted to file and serve expert report; corresponding leave to defendant to respond.
- Judges
- MN Mwangi
- Legal Topics
- Admissibility of Evidence, Expert Reports, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Autofine Limited
Plaintiff
Peninah Njeri Nduati
Plaintiff
Julia Mwihaki Kinandu
Plaintiff
Equity Bank (Kenya) Limited
Defendant
Procedural Posture
Commercial Case / Interlocutory Application Ruling on Admissibility of Expert Report
Legal Issues
- 1 Whether the plaintiffs should be allowed to file and produce an expert report by PW2 that was omitted from the trial bundle.
- 2 Whether the production of the report by PW2 would amount to filling gaps in the plaintiffs' evidence.
- 3 Whether the defendant will be prejudiced by the late filing of the report.
Ratio Decidendi
The court held that the plaintiffs had not closed their case and that PW2 had already been lined up as a witness from the outset. The omission of the report was inadvertent, and its production would not fill any gaps in the evidence already adduced by PW1. The defendant would not be prejudiced as it would have the opportunity to cross-examine PW2 and to file any additional evidence in response. The court therefore granted the plaintiffs leave to file and serve the report within 14 days and granted the defendant 21 days to respond.
Court Disposition
Application allowed. Leave granted to file and serve expert report; corresponding leave to defendant to respond.
Orders
- The plaintiffs shall file and serve the report prepared by PW2 within 14 days.
- The defendant is granted leave to file any additional evidence in response to the report within 21 days.
Full Case Text
Judgment text and source record
31 paragraphs
Autofine Limited & 2 others v Equity Bank (Kenya) Limited (Commercial Case E092 of 2020) [2024] KEHC 15489 (KLR) (Commercial and Tax) (26 November 2024) (Ruling)
Neutral citation: [2024] KEHC 15489 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Commercial Case E092 of 2020
MN Mwangi, J
November 26, 2024
Between
Autofine Limited
1st Plaintiff
Peninah Njeri Nduati
2nd Plaintiff
Julia Mwihaki Kinandu
3rd Plaintiff
and
Equity Bank (Kenya) Limited
Defendant
Ruling
1. I have considered the oral application made by the plaintiff to have a Report prepared by PW2 produced in evidence, by the said witness being allowed to file his Report which was inadvertently omitted when the plaintiff’s Trial bundle was being filed.
2. The plaintiff’s Advocate has explained that the Report to be filed for production by PW2 will only address the discrepancy in the amount paid by the plaintiffs for the three (3) facilities, and what was supposed to have been paid under the facility letter.
3. From the evidence adduced by PW1, I did not hear him addressing the said issue in regard to the total amount that was paid to the defendant from the facility letter, for the three (3) facilities, and the actual amount paid by the plaintiff. There will therefore be no gap or shortcoming from the evidence that PW1 adduced that PW2 will be coming in to fill or rectify. In my understanding, PW2 will adduce evidence on a professional basis from calculations made by him.
4. Secondly, the witness had already been lined up to testify by the plaintiff from the beginning. He is not a witness that the plaintiff now wishes to bring on board at this stage.
5. I therefore do not agree with Mr. Oketch for the defendant that the Report that PW2 intends to produce is meant to fill in gaps in the plaintiff’s evidence.
6. Thirdly the plaintiff has not closed its case.
7. Fourthly, the defendant’s Counsel will have an opportunity to cross-examine the witness (PW2).
8. I hereby give the plaintiff 14 days to file and serve the Report prepared by PW2.
9. Leave is granted to the defendant to file any additional evidence in response to the Report to be filed by the plaintiff. The leave granted will be for 21 days.
10. This case will be mentioned on 27/1/2025 to take a further hearing date.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 26TH DAY OF NOVEMBER 2024, RULING DELIVERED IN OPEN COURT.NJOKI MWANGIJUDGEIn the presence of:Mr. Christopher Rosano for the plaintiffMr. Oketch for the defendantMs B. Wokabi – Court Assistant.