[2022] KEHC 10489 (KLR)

David Njane t/a Arwings Twin Service Station & another v Total Kenya Ltd (Civil Suit 433 of 2010) [2022] KEHC 10489 (KLR) (Commercial and Tax) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10489 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 433 of 2010

A Mabeya, J

June 3, 2022

Between

David Njane t/a Arwings Twin Service Station

1st Applicant

Twin Buffalos Safaris Ltd

2nd Applicant

and

Total Kenya Ltd

Respondent

Ruling

1. Before Court is the plaintiff’s application dated July 5, 2021. It was brought under sections 1A, 1B & 3A of the Civil Procedure Act. It sought leave to file a further supplementary bundle of documents as per the bundle annexed to the application.

2. The application was supported by the affidavit of David Njane sworn on July 5, 2021. He averred that the time for filing the further supplementary list and bundle of documents had lapsed, pre-trial directions issued and the matter was already part heard.

3. That the additional documents included copies of registers on losses relating to uncalibrated tankers and invoices on the claim on credit notes payable to the applicants. That the documents were not available prior to the pre-trial period despite effort to trace them at the auditor’s office. That the documents were recently traced at the auditor’s store mixed up with other unrelated documents hence the late filing.

4. The documents were crucial to the applicants’ case and it was in the interest of justice to grant leave to enable the applicants rely on them in this case.

5. The respondent opposed the application vide grounds of opposition dated July 28, 2021. It was contended that the applicants had already filed a supplementary bundle of documents on November 1, 2019. That it had been 11 years since the institution of the suit and 1 year ever since the supplementary bundle of documents were filed.

6. It was further contended that the additional evidence was very extensive in nature and was improperly paginated thus more than the 240 pages indicated in the bundle. That it would cost the respondent more time and resources to effectively respond to the applicant’s claim. That the documents could have been obtained earlier with due diligence and that the pre-trial process required the parties to disclose their case at an early stage to avoid ambush, delay of the trial and an increase in litigation. That the trial had already commenced and one witness examined thus if the application was allowed, it would cause further delay and increase the respondent’s litigation costs.

7. I have considered the application, the record and the parties’ submissions. The main issue for determination is whether leave for filing of the documents out of time should be granted.

8. In Methuselar Keyah Lubembe v Albina Kipkemoi [2019] eKLR, the Court of Appeal stated: -“In deciding whether to grant leave or not, a court of law would weigh the benefit to be achieved by allowing the documents against the possible harm to be suffered by refusal. That question is asked and considered on both sides of the case – the plaintiff’s case as well as the defendant’s case. That question is normally fashioned as to what decision would in the circumstances of each case serve the ends of justice.”

9. In Concord Insurance Co. Ltd v NIC Bank Ltd[2013] eKLR, it was held: -“The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist than in appraising the strength or weakness of their relevant cases, and thus to provide the basis for fact disposal of the proceedings before or at the trial each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation.”

10. Finally, in Johana Kipkemoi Too v Hellen Tum [2014] eKLR, the court stated that: -“There is no provision in the rules that permits the court to accept a list of witnesses or documents filed outside the time lines provided in Order 3 Rule7 and Order 7 Rule 5. The provisions of Order 3 and Order 7 are meant to curb trials by ambush. The objective is to make clear to the other party, the nature of evidence that he will face at the trial. There is however, no clear cut provision setting out the consequences of failure to comply. The Rules do not state that such party will be deterred from relying on witnesses or documents which were not furnished at the filing of the pleadings or later filed with the consent of the court. But the Constitution under Article 50 (1) provides that every party deserves a fair trial and it is arguable that a trial will not be a fair trial, if a party is allowed to hide his evidence and ambush the other party at the hearing.”

11. From the foregoing, it is clear that that the rules and timelines set out in the Civil Procedure Rules are aimed at ensuring efficient, timely and fair administration of justice. They are meant to give certainty in matters litigation. That the respective parties’ cases be disclosed at the earliest to enable the opposite party to prepare his defence effectively.

12. However, practice has revealed that litigants have taken lightly the provisions in Order 11 Rule 1 and 2 and Order 3 Rule 2 which give an opportunity for parties to file and exchange all documents as well as deal with preliminary issues and agree on contested and uncontested issues to narrow down on the real issues in dispute. The casual confirmation of compliance with order 11 without appreciation of the full nature of pre-trial directions and case-conference under Order 11 leads to the filing of applications such as the one before court leading to further delays in administration of justice.

13. The present application seeks leave to file voluminous documents in a matter that was filed in 2010. The applicants submitted that no prejudice would be occasioned to the respondent as the applicants had not closed their case and PW1 was available for cross-examination upon producing the subject documents.

14. They relied on the cases ofAnthony Kamau Njeri (Suing as the Administrator of the Estate of the late Mary Gathoni Kanyingi v Eunice Muthoni Kahenia [2018] eKLR and Depsahi Omprakash v Habibi Ali Mohammed & 4 Others [2018] eKLR.

15. On the other hand, the respondent submitted that this was the third time the applicants were making such a move. That the applicants had already filed a supplementary bundle of documents on November 1, 2019 and July 5, 2021. That the application was being brought more than a decade after the suit was commenced. That no good reason had been advanced for the late application. That admitting the 521 page bundle at this stage would distort the rules of procedure which are meant to provide clarity to the trial process and fairness to both parties.

16. It was also submitted that the bundle contained extensive documents including calculations and invoices which would need rigorous analysis by the respondent’s accounting experts before any response could be tendered. That this was an attempt by the applicants to make their case after the hearing had already began and progressed.

17. The cases of Raila Odinga & 5 others v IEBC and 3 others [2013] eKLR and Chairman, Secretary & Treasuer suing as the officials/on behalf of House of Hope vs Wotta House Limited [2018] eKLR, were relied on in support of those submissions.

18. In applications for extension of time, the court has to consider the delay, the reason for the delay and the possible prejudice to be suffered by the opposite party.

19. It is clear from the record that the time for filing and exchanging the documents ended years ago. That the trial of the suit has already commenced and one witness has already testified. Clearly there has been inordinate delay.

20. That brings me to the second principle which is, the reason for the delay. The applicants explained that the documents could not have been found at the right time. That they were only discovered recently amongst a hip of other unrelated documents in the 2nd applicant’s auditor. The respondent submitted otherwise. To it, this was an attempt by the applicants to panel beat their case after they had seen the same demolished at the trial.

21. The Court takes the view that, it is not far-fetched that the documents may have been with the alleged auditor. It is not uncommon for traders or business entities to deliver to their auditors’ financial documents for purposes of audit and other financial scrutiny. It is not an unreasonable and unbelievable explanation. To this Court’s mind, it is a plausible explanation.

22. What of the prejudice to be suffered? The applicants submitted that failure to admit the documents might prejudice their right to a fair hearing under Article 50 of the Constitution of Kenya. On the other hand, the respondent argued that due to the voluminous nature of the subject documents, there would be delayed trial and increased litigation costs on its part.

23. The Court agrees that the documents sought to be introduced are quite voluminous. It may take the respondent’s experts a couple of days or weeks to scrutinize the same and prepare a rebuttal. This will obviously lead to increased costs.

24. However, on the other part, if the documents are not admitted, the applicants would forever be barred from relying on them in support of their claim. This Court is alive to the fact that, unless those documents are produced at this stage, there would be no other opportunity whatsoever to do so. That may in one way or the other affect the applicant in their claim.

25. It is not in dispute that the applicant’s main witness Pw1 has already testified. However, the applicants have yet to close their case. Pw1 may be recalled to produce the said documents and be cross-examined accordingly. The stage at which the proceedings is no so unredeemably late. The plaintiffs’ case is neither closed nor has the defence opened its case.

26. InMohamed Abdi Mohamed v Ahmed Abdullahi Mohamed and 3 others [2018] eKLR, the Supreme Court of Kenya had an opportunity of considering an application to introduce new documents as late as appeal before that apex Court. It held, inter-alia, that: -“… (c) It is shown that it could not have been obtained with reasonable diligence for use at the trial, was 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; …(f)The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;(l)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...We must stress here that this Court even with the application of the above stated principles will only allow additional evidence on a case by case basis and even then sparingly, with abundant caution.”

27. In the Court’s view, the prejudice to be suffered by denying the production of the documents would be higher than allowing their introduction. In the latter case, the defence would be given an opportunity to scrutinize the documents and file a rebuttal if any. Further, the delay may be atoned by an order for costs.

28. Accordingly, I find the application dated July 5, 2021 to be meritorious and allow the same as follows: -a) Leave is granted to the applicants to file and serve a Further Supplementary Bundle of documents within 3 days of this ruling.b) The respondent is granted leave to likewise file and serve a Further Bundle of documents within 21 days of service, if need be.c) Pw1 is hereby recalled to be cross-examined on the said Further Supplementary Bundle of documents.d) The parties do take a date/dates for further trial of this matter on a priority.e) Thrown away costs assessed at Kshs 20,000/- are awarded to the respondent in any event.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JUNE, 2022. A. MABEYA, FCIArbJUDGE3