https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10006

Business Partners International Kenya SME Fund v Namwake Investments Ltd & 2 others (Commercial Case 200 of 2017) [2026] KEHC 10006 (KLR) (Commercial and Tax) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10006 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 200 of 2017 BW Murunga, J July 9, 2026 Between Business Partners International Kenya Sme Fund Plaintiff and Namwake Investments Limited 1st Defendant Salome Wahuro Joseph 2nd Defendant Joseph Waithaka Njoroge 3rd Defendant Ruling 1.By a Notice of Motion dated 11th December 2025, expressed to be brought under Sections 1A and 1B of the Civil Procedure Act, Order 1 Rule 10 of the Civil Procedure Rules and all enabling provisions of the law, the Defendants/Applicants move this Court for orders that:a.the Court be pleased to allow the Defendants to substitute their witness, one Nganga Thiga, an accountant, with one William Munene Khonge;b.the audited financial report dated 4th December 2025 be admitted in evidence; andc.costs be in the cause. 2.The application is anchored on the grounds on its face and on the Supporting Affidavit of Joseph Waithaka Njoroge, the 3rd Defendant and a co-director of the 1st Defendant, sworn on even date. 3.His deposition, in brief, is that the trial has substantially progressed; that the Plaintiff closed its case and gave its own evidence; that the only witness remaining was the auditor, who was to produce the audited financial report; that the said auditor is no longer in a position to offer evidence, as he had intimated, prompting the engagement of another auditor; that the Court directed that a formal application be made annexing the fresh audited report; and that a fresh audit dated 4th December 2025, marked “JWN-1”, has since been prepared. 4.The Plaintiff opposes the application through the Replying Affidavit of Jenipher Wanjiku Odek, its Portfolio Manager, sworn on 9th February 2026. She retraces the history of the suit: it was instituted by a Plaint dated 13th April 2017 and filed on 12th May 2017, seeking judgment against the Defendants jointly and severally for Kshs. 40,787,925.01 together with interest and costs; it was certified ready for hearing on 18th September 2018; the Plaintiff prosecuted its case to conclusion and closed it on 10th November 2022; and on 21st June 2023, DW1, Joseph Waithaka Njoroge, testified, whereafter the defence obtained adjournments on the recurring premise that it would call its auditor. 5.She deposes that the application is frivolous, an afterthought and an abuse of the process of the Court; that the Defendants have annexed no correspondence, summons, e-mails, call logs, engagement letters, professional search records or any material at all demonstrating an effort to trace the alleged witness, so that the Court is invited to exercise its discretion in a vacuum; that the proposed report is dated the very day the defence hearing was scheduled and introduces new computations, assumptions and conclusions which the Plaintiff never had an opportunity to address; and that admitting it would amount to trial by ambush, force the Plaintiff to incur further costs, necessitate the recall of witnesses, and prolong a suit that has been pending since 2017. 6.In a Further Affidavit sworn on 12th February 2026, the 3rd Defendant answers that the report dated 4th December 2025 is a replica of the report prepared by Mr. Nganga Thiga dated 20th May 2017; that nothing new has been introduced and the Plaintiff has pointed to nothing specific that has been added; that he is not an accountant by profession and had engaged Mr. Thiga, an independent contractor serving many clients; and that the new auditor “looked at the work done by his fellow colleague and adopted them but just dated them with the new date.” B. The Parties’ Submissions 7.In their written submissions dated 22nd April 2026, the Defendants urge that this Court possesses a wide discretion to allow the substitution of a witness where sufficient cause is shown and that the purpose of courts is not to punish parties for circumstances beyond their control but to administer substantive justice. 8.The Defendants further submits that the unavailability of the original witness was a genuine and unforeseen development, not the product of neglect or bad faith and that the report placed before the Court the same financial position through the lens of a substitute expert. 9.They invoke Article 159(2)(d) of the Constitution, Sections 1A and 1B of the Civil Procedure Act, and rely on Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR and Central Kenya Limited v Trust Bank Limited (2000) 2 EA 365. Any prejudice, they say, is fully answered by the Plaintiff’s untouched right of cross-examination. 10.The Plaintiff’s written submissions dated 10th June 2026 are in opposition of the application. Counsel submits that a party seeking discretionary relief must place sufficient, candid and credible material before the Court, citing Shah v Mbogo & Another [1967] EA 116 and that Article 159(2)(d) is not a panacea for procedural default, citing Law Society of Kenya v Centre for Human Rights and Democracy & 12 Others (Petition 14 of 2013) [2014] KESC 29 (KLR). 11.The Plaintiff further submits that additional evidence is not admitted to fill gaps or make a fresh case and that the Defendants have not demonstrated that the proposed witness participated in the preparation of the earlier report, undertook the original reconciliation, reviewed the primary documents contemporaneously, or received disclosed instructions. 12.Further, the admission in the Further Affidavit is fatal either way, if the proposed witness did not prepare the original report he cannot meaningfully be cross-examined upon it, and if the report is his own, then it is new expert evidence prepared after the close of the Plaintiff’s case. 13.The delay between June 2023 and December 2025, counsel presses, is inordinate, inexcusable and wholly unexplained. C. Issues For Determination 14.From the pleadings and the rival submissions, three issues distil themselves for determination:(i)whether the Defendants have laid a sufficient basis for the substitution of Nganga Thiga with William Munene Khonge at this stage of the trial;(ii)whether the audited financial report dated 4th December 2025 should be admitted in evidence; and(iii)what consequential orders, including as to costs, should follow. D. Analysis And Determination 15.A trial is an ordered affair, not a moveable feast. Case management directions, the filing of witness statements and the pre-trial confirmation of documents exist so that each party knows the case it must meet, and so that the trial proceeds without ambush. 16.A litigant who arrives at the tail end of the defence hearing seeking to change its witness and to place a freshly dated expert report on the record therefore carries a heavy burden of persuasion. The Court holds the scales, and it does not hold them idly. 17.The discretion the Defendants invite the Court to exercise is an old and well-mapped one. Its polar star remains the pronouncement of the Court of Appeal in Shah v Mbogo & Another [1967] EA 116, where it was held that the discretion:“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 18.The question this Court must answer is therefore on which side of the Shah v Mbogo divide this application falls: is the Defendants’ predicament a misfortune deserving indulgence, or evasion wearing the garments of misfortune? The answer does not announce itself at first blush; it must be worked out from the record. 19.I begin with the Plaintiff’s criticisms, which are neither idle nor cosmetic. It is true that the Supporting Affidavit is thin on diligence: no letter, no returned summons, no affidavit of attempted service, no professional search of the Institute of Certified Public Accountants of Kenya, no scrap of paper evidencing the hunt for Mr. Thiga. 20.It is also true that the period between 21st June 2023, when DW1 testified, and December 2025, when this application was filed, is barren of explanation. And it is true that the new report bears the very date on which the defence hearing was scheduled. 21.It may also be observed, in passing, that the application is brought under Order 1 Rule 10 of the Civil Procedure Rules, a provision that concerns the joinder of parties rather than of witnesses, though an infelicitous citation of provisions has never, of itself, condemned an otherwise merited application. If the inquiry ended with these criticisms, the Defendants’ path would be steep indeed. 22.But the inquiry does not end there. Three features of this record pull in the opposite direction, and candour requires that they be weighed with equal seriousness. 23.First, the nature of the witness. It stands uncontroverted that the 3rd Defendant is not an accountant by profession, and that Mr. Thiga was an independent contractor serving many clients. A party does not own its witness. An independent professional is beyond a litigant’s command: he may relocate, retire, fall ill, or simply decline. 24.The paucity of tracing material is regrettable and the Court deprecates it; but the absence of exhibits is not, without more, proof of a scheme to delay, least of all where the party accused of manufacturing delay is the very party whose defence cannot close until the witness is heard. Delay, here, wounds its supposed author. 25.Secondly, the character of the evidence. Whether the report of 4th December 2025 is truly “new” is a question the record itself answers. The earlier report of 20th May 2017 was disclosed in the Defendants’ List of Documents filed as far back as May 2018, and it is the Plaintiff itself which exhibits that report as “JWO-1”. A comparison of the two documents reveals the same loan analysis, the same computations of interest, the same schedules of dishonoured payments, penalties and royalty fees. 26.The Defendants say, on oath, that the one is a replica of the other, and the Plaintiff has not placed before the Court a single specific entry said to be novel. Trial by ambush presupposes surprise; there is little capacity for ambush in figures the Plaintiff has held in its hands for the better part of a decade. 27.Thirdly, the admission is said to be fatal. The Plaintiff makes much of the deposition that the proposed witness “looked at the work done by his fellow colleague and adopted them.” That averment undoubtedly raises legitimate questions of authorship, methodology and professional independence. But questions of that kind are the natural quarry of cross-examination. 28.Under Section 48 of the Evidence Act (Cap. 80), the opinion of a person specially skilled in a point of science or art is admissible where the Court must form an opinion upon such a point; the expert’s qualification, the foundation of his opinion and the weight it ultimately deserves are matters ventilated at trial, not strangled at the threshold. If the witness has merely re-badged another man’s labour, that frailty will be laid bare in the witness box and the Plaintiff will be its principal beneficiary. 29.Though this is not an application to amend pleadings, it seeks to alter the evidentiary architecture of the defence midstream, and the considerations that govern amendment supply a useful and well-worn analogy. In Central Kenya Limited v Trust Bank Limited (2000) 2 EA 365, the Court of Appeal set out the guiding principles thus:“A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.” 30.In the same register, the High Court in Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR reminded litigants that:“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on.” 31.Measured against those touchstones, the application fares better than the Plaintiff allows. Undue delay? There has been delay, and it is deprecated; but delay standing alone has never been decisive where the other side can be made whole. 32.The old wisdom of Eastern Bakery v Castelino (1958) EA 461 is that “amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.” 33.A new or inconsistent case? None: the accounting controversy has been the beating heart of this suit since 2017, and the report mirrors one disclosed in 2018. 34.An incurable injustice? Each prejudice the Plaintiff names has a procedural remedy squarely within this Court’s gift, and those remedies will be deployed in the orders that follow. 35.Against all this must be set the consequence of refusal. This is, at bottom, an accounting dispute. To shut out the only expert evidence the defence proposes to call would be to require the Court to resolve technical financial questions in an evidentiary vacuum, and to condemn the Defendants unheard on the very substance of their defence. 36.The right to be heard is not a courtesy extended to the diligent alone. As the Court of Appeal put it in Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR, “the right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law.” That right, guaranteed by Article 50(1) of the Constitution, would ring hollow if a defence built on figures could be decided without the figures ever being spoken to. 37.I am alive to the Supreme Court’s caution in Law Society of Kenya v Centre for Human Rights and Democracy & 12 Others [2014] KESC 29 (KLR) that Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls and falls to be applied case by case; the Court there observed that“all that the Courts are obliged to do, is to be guided by the principle that ‘justice shall be administered without undue regard to technicalities.’” 38.The above, in my considered view, is precisely the species of case that provision was written for: the procedural default is real but curable; the prejudice is genuine but compensable; and the alternative is a judgment on the merits built upon half the picture. 39.When the scales finally settle, they settle thus: what the record discloses is misfortune compounded by indolence, not evasion. Indolence is punished in costs; it is evasion that is punished in refusal. The Defendants have, by the narrowest of margins, laid a sufficient basis for the indulgence they seek but they shall have it on terms that hold them to strict account and make the Plaintiff whole. E. Disposition And Orders 40.In the result, the Notice of Motion dated 11th December 2025 succeeds, and the following orders issue:a.Leave is hereby granted to the Defendants to substitute their witness, Nganga Thiga, with William Munene Khonge, who shall testify as the Defendants’ final witness.b.The audited financial report dated 4th December 2025 shall be produced in evidence through the said witness, who shall be subject to full cross-examination thereon; its probative value and the weight it deserves shall abide the trial and the final judgment of the Court.c.The Plaintiff shall be at liberty, within thirty (30) days of the close of the said witness’s testimony, to file and serve a rebuttal expert report and/or to apply for the recall of any of its witnesses, if so advised.d.The defence hearing shall proceed on a priority basis.e.The costs of the application are awarded to the Plaintiff in any event.It Is So Ordered. DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:In the presence of:Wachira For the Defendant/ApplicantsJane Okoth For the Plaintiff/RespondentKevin Babu - Court Assistant