Chacha & another v Getene (Environment and Land Appeal E008 of 2026) [2026] KEELC 5255 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC APPEAL NO. E008 OF 2026** **MARIA MOGAIYA CHACHA ....................................1ST APPELLANT** **CHACHA YAGARA BOSENSERA ............................2ND APPELLANT** **-VERSUS-** **BRADAS GETANGITA GETENE .................................RESPONDENT** *(Being a judgment arising from the Ruling and Order of Hon. J.P. Nandi, Senior Principal Magistrate, delivered on 17 th April, 2026 in Kehancha Senior Principal Magistrate's Court ELC Case No. E014 of 2025****)*** **JUDGMENT** 1. **Introduction** 2. This is an appeal against the Ruling and Order of Hon. J.P. Nandi, Senior Principal Magistrate, delivered on 17th April, 2026 in the Kehancha Law Courts in ELC Case No. E014 of 2025. In it he dismissed the Appellants' (then Plaintiffs') Notice of Motion dated 17th February, 2026 with costs. In the Motion the application sought, in substance, leave to file a Supplementary List of Documents and a Notice to Produce Order directed at the Director, National Land Commission, compelling production of the adjudication touching on **LR NO. BUGUMBE/MASABA/375**. 3. Aggrieved, the Appellants filed a Memorandum of Appeal dated 14th May, 2026 raising seven grounds, and later filed written submissions dated 11th July, 2026 in support of the Appeal. They urged this Court to allow the appeal, set aside the Ruling in its entirety, remit the suit for hearing with the additional evidence admitted. He also sought the grant of the consequential orders set out in the Memorandum of Appeal. 4. **Background** 5. The dispute traces its origin to a suit filed on 17th November, 2023 at the Chief Magistrate's Court, Migori, as ELC No. 88 of 2023. The Appellants sued the Respondent over land originally known as L.R. NO. **BUGUMBE/MASABA/MABERA/777.** The Appellants aver that the suit parcel had, at the material time, been registered in the name of their late father, Yagara Chacha. However, an official search done on it revealed that it was registered in the Respondent's name. It later emerged, upon service of the Defence, that the parcel had been sub-divided, with the portion occupied by the Respondent now bearing the number **Bugumbe/Masaba/Mabera/851.** 6. The Respondent entered Appearance, filed a Defence and on 22nd January, 2024. He raised a Notice of Preliminary Objection, contending in it that the suit was time-barred under Section 7 of the Limitation of Actions Act and further that the Appellants had failed to exhaust the remedies available under Sections 26 and 29 of the Land Adjudication Act. The Preliminary Objection was heard. A ruling was delivered on 30th May, 2024 dismissing it, following which the suit proceeded on its merits. 7. On 30th July, 2024, the Respondent moved to transfer the suit, vide Migori ELC Miscellaneous Application No. E011 of 2024, to the Senior Principal Magistrate's Court at Kehancha, alleging that it was the court within whose jurisdiction the suit land lay. By an Order dated 26th February, 2025, Nyagaka J. allowed the transfer, each party bearing its own costs. The suit was thereafter registered as Kehancha SPM ELC No. E014 of 2025. 8. It would appear that owing to a want of proper notice of the transfer to the Appellants' Advocates, the first mention before the Learned Trial Magistrate proceeded in the absence of the Appellants' counsel. A hearing date of 15th May, 2025 was issued. On that date, rather than proceeding to hearing, the Appellants' Advocate sought leave to amend the Plaint. He alleged that it was necessated by the fact of the sub-division of the suit property. Leave was granted on 24th July, 2025. The Appellants filed an Amended Plaint together with a Supplementary List of Witnesses and a Further List of Documents. The Respondent filed an Amended Defence on 15th January, 2026. 9. The suit proceeded to hearing on 21st January, 2026. The two Appellants testified as PW1 and PW2 respectively. They were cross-examined by counsel for the Respondent. A third witness, PW3, was stood down by the Appellants' Advocate *"on the guise of getting the original documents which they didn't have"* a fact recorded in the trial court's Ruling and not seriously disputed. The matter was stood over to 18th February, 2026 for further hearing. 10. Before that date, and specifically on 17th February, 2026, the Appellants filed the Notice of Motion which would ultimately give rise to this appeal. They sought, in summary, (a) leave to file a Supplementary List of Documents; (b) that the said documents be deemed duly filed upon payment of the requisite fees; (c) a Notice to Produce Order against the Director, National Lands Commission, for the adjudication records and proceedings relating to **LR NO. BUGUMBE/MASABA/375**; and (d) costs in the cause. 11. The Application was supported by the Affidavit of the 2nd Appellant, Chacha Yagara Bosensera, who deponed that the Appellants had conducted a "frantic search" for the adjudication records at the Kehancha and Migori Land Registries without success. That following the first day of hearing, he was informed by an unnamed longtime friend of the possibility of retrieving the records from the National Lands Commission at Ardhi House, Nairobi. He travelled to Nairobi on 27th January, 2026. Further that although officials there confirmed that the register showed the first name on the parcel to be that of the Appellants' late father and not the Respondent, they declined to release the adjudication records without a court order, the matter being sub judice. 12. The Respondent opposed the application. Upon hearing both parties, the Learned Trial Magistrate dismissed the application on 17th April, 2026. He found, in summary, that (a) the Appellants were on a fishing expedition, seeking to fill gaps in their case exposed on cross-examination; (b) the documents sought had never been annexed, and the sole related document earlier relied upon (marked **PMFI-1**) was itself a mere photocopy; (c) the Appellants had not exhibited any letter demonstrating a formal application for the documents to any government office, notwithstanding that they were represented by counsel throughout; (d) it was not the business of the court to assist a represented litigant to collect evidence; (e) the Respondent would be prejudiced, the Appellants having already testified and been extensively cross-examined; and (f) this was the second application of a similar nature brought by the Appellants in the course of the same suit. 13. **The Grounds of Appeal** 14. The Appellants challenged the Ruling on seven grounds, contending that the Learned Trial Magistrate erred in law and in fact: 15. **By finding that the Appellants were on a “fishing expedition” without proper consideration of the evidence of genuine and unsuccessful efforts made to obtain the records;** 16. **By holding that the Appellants ought to have applied directly to the Director, National Lands Commission, without a court order, notwithstanding that they had been refused access on account of the pending suit;** 17. **By holding that the Appellants sought to “fill gaps” without properly distinguishing gap-filling from the introduction of genuinely newly discovered evidence;** 18. **By finding that the Respondent would suffer prejudice without considering that any such prejudice was fully remediable by an award of costs and by granting leave to recall witnesses;** 19. **By failing to consider the balance of convenience and comparative prejudice, said to overwhelmingly favour the Appellants;** 20. **By dismissing the application solely on the ground that the documents sought were not annexed, notwithstanding that the very object of the Notice to Produce Order was to obtain those documents from a third party; and** 21. **By failing to give due weight to Article 159(2)(d) of the Constitution.** 22. **Respondent’s case** 23. In his Replying Affidavit sworn on 26th June 2026, the Respondent deponed that the Ruling of the Learned Trial Magistrate delivered on 17th April 2026 was well-reasoned and sound in law and that the appeal against it was without merit. He further deponed that it was not the business of the court to assist a litigant who was represented by an advocate to collect documents and evidence in support of their case. That the Appellants, having filed their suit on 17th November 2023, had three years within which to gather all documents and records required to litigate the matter and cannot now be heard to say they were unaware of the nature of their case. He further deponed that the Appellants had not exhibited any letter or correspondence demonstrating that they ever applied for the adjudication records from any government office and that nothing was placed before the trial court to show that the said documents were unavailable to them upon proper application and payment of the requisite charges. He further deponed that the trial court could not, in any event, be moved to issue orders against the National Lands Commission in the absence of such a prior application. He deponed, finally, that the appeal was a knee-jerk reaction occasioned by the intense cross-examination of PW1 and PW2 before the trial court. That it was frivolous and that it was intended merely to allow the Appellants to change the course of their case mid-proceedings and to stall the final determination of the part-heard suit. 24. **SUBMISSIONS** 25. **The Appellants' Submissions** 26. Learned counsel for the Appellants submitted that the test for admission of additional evidence before a party had closed its case is distinct from, and less stringent than, the test applicable to fresh evidence on appeal. Reliance was placed on ***Andrew Mugandi Nuri & 2 others v China Dalian International Group* [2020] KEELC 716 (KLR),** for the six principles governing re-opening of a case at trial, namely; absence of prejudice or embarrassment to the opposite party; that the evidence not be intended merely to fill gaps; absence of inordinate and unexplained delay; that the evidence could not have been obtained earlier with reasonable diligence; that it would probably have an important influence on the result, though not necessarily decisive and that it be apparently credible. 27. They further submitted that the evidence sought merely corroborated the Appellants' pleaded case that the suit land belonged to their late father and does not introduce a new cause of action. That the discovery at Ardhi House was coincidental and could not have been made earlier with reasonable diligence, per ***Techbiz Limited v Royal Media Services Limited* [2021] KEHC 3272 (KLR)**. They argued that the application, filed three weeks after the Ardhi House visit, was not inordinately delayed and that any prejudice to the Respondent is curable through cross-examination, recall of witnesses under Section 146(4) of the Evidence Act, and rebuttal evidence, citing ***Interactive Gaming & Lotteries Limited v Flint East Africa Limited & 2 Others* [2013] KEHC 4127 (KLR)**. Reliance was further placed on [***Safaricom Plc v East Africa Data Handlers Limited [2022] KEHC 12979 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/12979/eng%402022-09-14)for the proposition that a request for production need only identify the documents with specificity, show relevance, and demonstrate that they were in the possession of a party or third party, not that they first be annexed. Finally, reliance was placed on Articles 50(1) and 159(2)(d) of the Constitution. **(ii) The Respondent's Submissions** 1. The Respondent supported the reasoning of the trial court and maintained consistently with the position taken in his Replying Affidavit. He submitted that the Appellants had never exhibited any letter or correspondence evidencing a formal application for the disputed records from any government office. He argued that the Appellants were, at all material times, represented by counsel presumed to know the law and the avenues through which such records may be obtained. He further submitted that the Appellants had upwards of three years, from the filing of the suit in November 2023 to the application in February 2026, within which they ought to have secured the documents. Lastly, he submitted that the Appeal was calculated to remedy weaknesses exposed during cross-examination and the same ought to be dismissed. 2. **Issues for Determination** 3. I have carefully considered the Record of Appeal, the impugned Ruling, the pleadings and affidavits filed both before the trial court and in this appeal, the rival submissions and the authorities cited. Arising from the foregoing, the following issues fall for determination: 4. The standard applicable to this Court's review of the trial court's exercise of discretion; 5. Whether the Learned Trial Magistrate misapprehended or misapplied the governing principles on the admission of additional documentary evidence during trial; 6. Whether the finding that the Appellants were on a “fishing expedition” to fill gaps in their case, as opposed to adducing genuinely new evidence, is borne out by the record; 7. Whether the trial court erred in its treatment of prejudice to the Respondent and the balance of convenience; 8. Whether it was erroneous to require prior annexation of the documents sought to be produced under the Notice to Produce; and 9. Whether Article 159(2)(d) of the Constitution avails the Appellants in the circumstances. 10. **Analysis and Determination** 11. I am determining the issues in sequence. 12. **The standard applicable to this Court's review of the trial court's exercise of discretion** 13. This appeal challenges the exercise of a discretionary jurisdiction by the trial court. The applicable standard is not in doubt. In ***Mbogo & Another v Shah* [1968] EA**, it was held that: *“An appellate court will not interfere with the exercise of the trial court's discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been miscarriage of justice.”* 14. Furthermore, where a lower court has exercised its discretion and arrived at a finding, this being a first appellate one has to consider whether the trial exercised injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered. I am guided by the decision of **Supermarine Handling Services Ltd V Kenya Revenue Authority [2010] KECA 373 (KLR)** the court held as follows: ***“…Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”.*** 1. Similarly, in **Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR** the Court of Appeal held that: ***“…the Court of Appeal, in interfering with the exercise of discretion of the trial Judge appealed from, ought to satisfy itself that the exercise of that discretion either way was improper and therefore warrants interference.”*** 1. Moreover, in **Edward Sargent versus Chotabha Jhaverbhat Patel [1949] 16 EACA 63**, it was held that there is no bar to an appeal lying to an Appellate Court against an order made in the exercise of judicial discretion, but for the Appeal Court to interfere only if it be shown that the discretion was exercised injudiciously. 2. Additionally, in **Agola v Ngodhe (An administrator to the Estate of Zakayo Ngodhe) (Environment and Land Appeal E025 of 2024) [2025] KEELC 1367 (KLR) (6 March 2025) (Judgment),** this court stated; ***“As for the instant appeal, it is clear that it arose from the low court’s exercise of discretion. Regarding appeals of such nature, the appellate court will not normally interfere with the discretion of the trial court unless the trial magistrate or judge exercised the discretion wrongly, injudiciously or misdirected himself in some matter thereby arriving at a wrong decision, the decision clearly wrong.”*** 1. Also, in **Nyaoke & 7 others v Ayaga (Environment and Land Appeal E024 of 2024) [2025] KEELC 7345 (KLR) (28 October 2025) (Judgment)** this court held, ***“Again, it is worth of note that this is an appeal that challenges the exercise of discretion by the trial court. The principles that govern the instances that an appellant court may interfere with a decision arrived at by exercise of discretion by a court appealed from are now settled. This court must be cautious in deciding to interfere with the discretion of the trial court. If I must do so, I should*** ***not substitute my decision with the that of the trial court. I must consider and find, if I have to overturn that decision, that the trial court failed to act judiciously or was plainly wrong on principles that he proceeded on or considered or failed to consider factors which he ought not or ought to have considered, respectively.”*** 1. Accordingly, this Court not entitled to substitute its own view for that of the trial court merely because it might, sitting at first instance, have exercised the discretion differently. It can only interfere with the decision where it is of the considered view that the appellants have demonstrate to its satisfaction that trial court had a misdirection, consideration of irrelevant matters, made an omission of relevant matters or included matters it ought not have included, or arrived at a decision so plainly wrong as to occasion a miscarriage of justice. That being so, I now proceed to determine the next issues. 2. **The Principles governing admission of additional documentary evidence during trial.** 3. It bears to be observed that the Learned Trial Magistrate drew his reasoning partly on the decision of [***Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] KECA 677 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/677/eng%402018-04-20)***,*** a decision setting out guidelines governing the admission of *additional evidence on appeal* under Section 78 of the Civil Procedure Act. In my humble view, strictly speaking, that is a distinct jurisdiction from the one invoked here, which concerned an application made to a trial court, before either party had closed its case, for leave to file supplementary documents and obtain a Notice to Produce. The question that remained for the court to determine was whether the trial magistrate, even when having applied the authority regarding admission of evidence on appeal, arrived at a wrong conclusion. 4. The applicable authorities are, rather, among others, ***Andrew Mugandi Nuri & 2 others v China Dalian International Group* [2020] KEELC 716 (KLR); *Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another* [2015] KEHC 3930 (KLR); *Johana Kipkemei Too v Hellen Tum* [2014] eKLR,** and the persuasive reasoning of the one of this very Court in ***Mansukhalal Jesang Maru v Frank Wafula* [2021] KEELC 1487 (KLR)**. 5. That said, this distinction does not assist the Appellants in the instant case. The considerations common to both strands of authority being diligence, absence of a gap-filling motive, absence of undue delay and absence of prejudice, are precisely those which the Learned Trial Magistrate applied and on which the Ruling turned. Citation of an appellate-evidence authority alongside the correct trial-stage principles does not, without more, amount to the misdirection contemplated in ***Mbogo v Shah***, where, as here, the substance of the reasoning tracks the correct legal test. 6. The inescapable conclusion this Court arrives at based on the above analysis is that parties should and are required, by the Rules, to file their supporting documents while they file their pleadings. Only in extremely rare and exceptional circumstances that they are allowed with leave of the Court to file additional documents after filing their pleadings. The rationale herein is clear: the adverse party ought to be informed of the case confronting him or her and sufficiently prepare for it. How can they prepare fully for it if the opposing party withholds the evidence from them? **Order 3 Rule 2, Order 7 Rule 5** of the **Civil Procedure Rules, 2010** and **Rule 28 of the Environment and Land Court Practice Directions** give a clear guideline on which documents accompany pleadings. The rationale for that is now clear: each party ought to present all it case to the adverse party so that the adverse party prepares for it well. 7. **Whether the finding that the Appellants were on a “fishing expedition” to fill gaps in their case, as opposed to adducing genuinely new evidence, is borne out by the record** 8. In ***Andrew Mugandi Nuri* (supra)**, it was held that the jurisdiction to re-open a case and receive additional evidence at trial, while discretionary, will not be exercised where the proposed re-opening is intended to fill gaps in the applicant's evidence, or where there is inordinate and unexplained delay and requires the applicant to demonstrate that the evidence could not have been obtained earlier with reasonable diligence. To the same effect and of the same reasoning is the decision of ***Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another* [2015] KEHC 3930 (KLR).** 9. Tuning then to the facts in instant matter, on the record, PW3 was stood down on 21st January, 2026 specifically on the guise of obtaining original documents which the Appellants did not then have. It was only thereafter and only once the two testifying Appellants had been cross-examined, that the instant application, seeking the very different category of documents PW3 could not produce, was not filed by them. This sequence whereby the hearing commenced, the applicant's own witnesses were cross-examined, one witness was stood down for want of documents, and an application for those documents followed immediately thereafter, is difficult to reconcile with the claim that the evidence only became available after the proceedings had commenced. In any event, which evidence became available? Does any of the Appellants have it the evidence? He does not. All he says is, from an unverified source, that he was informed by certain officials in Nairobi Ardhi House that Adjudication records exist. How can this claim be verified? Who has the records? A party in the matter before the trial court? Certainly not. 10. Rather, the appellants’ position, as the trial court record shows, is that they have testified and in the court of proceedings realized that their case is not watertight and have resorted to looking for more evidence, which they do not have even so, to fill in the gaps left. This step is demonstrative of, or suggests, an effort to fill in evidentiary gaps that became apparent during the course of the trial of the suit. The Learned Trial Magistrate's characterisation of the application as a fishing expedition to fill gaps was, on this record, a finding reasonably open to him exercising his mind properly on the facts before him. This Court is not persuaded that his finding discloses any misdirection. 11. Moreover, the Appellants contended that they were, in fact, refused the adjudication records at Ardhi House absent a court order, and that the trial court therefore erred in holding that they ought to have applied directly to the Commission. This ground fails to distinguish between two distinct issues. That is to say, the trial court's finding was not that a court order was unnecessary as a matter of law. It was rather, that the Appellants had notwithstanding three years of representation by counsel, never exhibited any letter or documentary record of any formal, written application for the adjudication records to the adjudication officer, the land registrar, or the Commission. The 2nd Appellant's account of an undocumented visit to Nairobi, prompted by an unnamed friend, and an oral refusal by unidentified officials, does not discharge the burden of demonstrating reasonable diligence contemplated in ***Andrew Mugandi Nuri* (supra)**. A litigant who has retained counsel throughout and who seeks the exercise of a trial court's discretion to depart from the ordinary rules on production of documents, must be able to point to some documentary trail of the diligence relied upon. None was placed before the trial court, and none has been placed before this Court. 12. In any event, the failure, if indeed there was any, of the officers at the Ardhi House to supply or give the appellants the requisite documents were not sufficiently demonstrated before the trial court and this one either. There is no official communication from the Appellants to the Adhi House for the ministry or the National Land Commission to supply the certified documents and it failed. In any event, if they asked for the documents and were turned away to the courts, this was an administrative decision whose content the lower court or even this one did not have to date. Even so, if there was such a decision, then the Fair Administrative Action Act provides on how to challenge such a decision. Also, the process of judicial review is was available to the appellants in order to bring about the required result. None of these were done. If they were, it was not evidenced in the trial court. Certainly, is could not be done in the matter before the trial court lest there arose inequality of arms or treatment of the parties herein. Thus, this ground fails. 13. **Prejudice and Balance of Convenience** 14. There always is a general proposition that prejudice occasioned by the late introduction of evidence may sometimes be cured by costs, cross-examination, or recall of witnesses, as was recognised. This has been held in ***Interactive Gaming & Lotteries Limited v Flint East Africa Limited & 2 Others* [2013] KEHC 4127 (KLR)** and ***Techbiz Limited v Royal Media Services Limited* [2021] KEHC 3272 (KLR)**, among others. However, the authorities do not hold that such remedial measures must invariably be preferred over dismissal, but they remain as factors within the overall discretion. Herein, the hearing had already proceeded to the point where the Appellants' own witnesses had testified and been cross-examined. The application, if granted, would necessarily have occasioned further delay through recall of witnesses and possible re-opening of cross-examination on both sides, and filling of gaps that cross examination of the appellant’s witnesses or evidence had created. There lies the prejudice. 15. The prayer sought to be granted if it be permitted is, precisely, trial-by-instalments, which **Order 3 Rule 2, Order 7 Rule 5** of the **Civil Procedure Rules, 2010** and **Rule 28 of the Environment and Land Court Practice Directions** are designed to forestall. Documents ought to be filed with pleadings because the latter are based on the evidence that they contain which is reduced into the filed and not vice versa. 16. In ***Mudwasi (Suing as Chairman of Wankanyakla Self Help Group) & 3 others v Tsusho Capital Kenya Ltd & another* [2022] KEHC 15989 (KLR),** it was held that there is no provision permitting the court to accept a list of witnesses or documents filed outside the timelines contemplated by the Rules, whose object is to curb trial by ambush. 17. Likewise, in [***Wanje v A.K.Saikwa [1984] KECA 58 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1984/58/eng%401984-02-23), the Court of Appeal held that the discretion to reopen a case should be exercised sparingly and not so as to enable a party to repair omissions in its evidence or improve its case after the hearing has substantially progressed. On the facts of this case, where the Appellants concede this to be the second application of its kind in the same suit, the balance of convenience and the risk of prejudice to the Respondent in the form of continued delay and repeated interruption of a part-heard trial, were properly weighed by the trial court against the Appellants. It would not be in the interest of justice for the Court to give one party chance to fill in gaps in evidence. 18. **The Notice to Produce and Prior Annexation** 19. There is some force in the submission that a Notice to Produce cannot sensibly be made conditional upon prior annexation of the very documents sought to be produced. Where a party seeks production of documents alleged to be in the possession or power of another party or a third party, it is sufficient that the documents be identified with reasonable particularity and their relevance to the proceedings demonstrated. One thing must be clear: a Notice to Produce as contemplated under Section 69 of the Evidence Act, Chapter 80 Laws of Kenya, ought and must be directed to parties only and must state with certainty each document required. And it must demonstrate that the party required to produced the document is the one who has it in his possession and power. This is not what the appellants laid before the trial court. 20. Be that as it may, to the extent that the trial court's language, read in isolation, appeared to treat the failure to annex the documents as an independent and sufficient ground for dismissing the application, that characterisation was imprecise. As held in ***Safaricom Plc v East Africa Data Handlers Limited* [2022] KEHC 12979 (KLR)**what an applicant must establish is that the documents are sufficiently identified, are relevant to the issues in dispute, and are in the possession or power of the person from whom production is sought, not that they be exhibited in advance. 21. That imprecision does not, however, avail the Appellants much. The Ruling, read as a whole, did not rest on non-annexation alone. It rested cumulatively on the absence of any documented application to the relevant offices, the fact that the only related document earlier relied upon (**PMFI-1**) was itself a photocopy, the original of which had never been indicated to be within the power of the Respondents. The trial Court right in concluding that the application was brought and the finding, addressed above, that the application was calculated to fill gaps exposed in cross-examination. An appellate court does not disturb an otherwise sound exercise of discretion merely because one strand of the reasoning, taken out of context, could have been more precisely expressed see ***Mbogo v Shah*** (supra). This ground, too, fails. 22. **Import of Article 159(2)(d) of the Constitution** 23. Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. It has never been understood, however, to dispense with procedure altogether, still less to permit indefinite re-litigation of a matter already substantially heard. Article 159(2)(b) equally requires that justice be administered without unreasonable delay. This is a principle that serves the interests of both the Appellants and the Respondent alike. As was observed in ***Johana Kipkemei Too v Hellen Tum [2014] KEELC 512 (KLR)*,** while a court retains a mandate to do justice without being unduly bound by technicalities, that mandate is itself bounded by the need to avoid prejudice to the opposite party. This suit was filed in November 2023, it has since undergone a determination of a preliminary objection, a transfer to another court, an amendment of pleadings, and part-hearing with two witnesses tendered and cross-examined. In these circumstances, Article 159(2)(d) does not avail the Appellants. 24. Moreover, I have noted that the even after the Ruling was delivered, the matter proceeded for further hearing where the 3rd witness testified. This Court wonders whether this appeal is not a mere academic exercise then. 25. **Conclusion** 26. Having analysed the record and the reasoning of the trial court against the applicable legal principles, I am unable to find that the Learned Trial Magistrate misdirected himself, took into account irrelevant considerations, failed to consider relevant ones, or arrived at a decision so plainly wrong as to occasion a miscarriage of justice within the meaning of ***Mbogo & Another v Shah* [1968] EA**. On the contrary, the record amply supports the trial court's finding that the application was intended to fill evidentiary gaps exposed during cross-examination, that the Appellants had not demonstrated the diligence required by law and that granting the application at that advanced stage of a part-heard trial would have occasioned real prejudice to the Respondent. 27. This Court is alive to the constitutional imperative of substantive justice under Article 159(2)(d). It is equally mindful of the command under Article 159(2)(b) that justice shall not be delayed, and of the need to ensure that litigation proceeds in a fair, orderly and efficient manner. As the Supreme Court observed in ***Salat v Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR)*** Article 159 was never intended "*to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice*." In the circumstances of this case, the Appellants have not demonstrated sufficient justification for departing from the ordinary rules governing the production of evidence after the trial had substantially progressed. This appeal must therefore fail. 28. The upshot is that: 29. **The appeal be and is hereby dismissed in its entirety.** 30. **The suit, namely, Kehancha SPM Court ELC Case No. E014 of 2025, is to proceed forthwith for further hearing and determination on its merits before the trial court, unless otherwise forestalled or stopped by other lawful means; and** 31. **The Appellants shall bear the costs of this appeal.** 32. **This Judgment be printed and a copy thereof be placed in the said file. The original lower court file, together with this Judgment, are to be forwarded forthwith or immediately to the trial Court for further action.** 33. It is so ordered. **Judgment dated, signed and delivered virtually via the Teams Platform this 29th day of July 2026.** **HON DR. *IUR* NYAGAKA,** **JUDGE** **In the presence of,** Ms. Kijana Advocate for the Applicant Mr. Owino Advocate for the Respondent