https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9552

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J MISC APPLN NO. E083 OF 2019 BETWEEN DEVELOPMENT BANK OF KENYA LIMITED ……….…. PLAINTIFF AMBROSE DICKSON OTIENO RACHIER VERSUS OTIENDE AMOLLO J. OKOME ARWA FRANCIS OLALO STEPHEN LIGUNYA all trading as RACHIER & AMOLLO ADVOCATES MARENYO LIMITED ………………..……………………. DEFENDANTS RULING Background and Introduction 1. This ruling determines the Plaintiff’s application dated 18th November 2025 which seeks leave to substitute a deceased witness, Olga Sechero, with Johnstone Wasonga and for the witness statement of Johnstone Wasonga dated 18th November 2025, to be deemed MISC APPLICATION NO. E083 OF 2019 RULING Page 1 as properly on record. The application is supported by the affidavit of Chris Gachiri, the Plaintiff’s Legal Manager sworn on the same date. 2. It is the Plaintiff’s case that the initial witness, Olga Sechero, passed away on 2nd October 2025. In her place, Johnstone Wasonga, who is said to be conversant with the facts and circumstances of the matter, has recorded a witness statement dated 18th November 2025. The Plaintiff avers that this statement is substantially identical to that of the deceased witness, save for the difference in name and job description, and that the substitution will not alter the nature of the Plaintiff’s evidence. It is further contended that the Respondent will not suffer prejudice, as they will retain the opportunity to cross- examine the new witness. On this basis, the Plaintiff urges that leave be granted to substitute the witness so that the suit may proceed expeditiously. 3. The application is opposed through Grounds of Opposition dated 9th February 2026. The Respondent contends, firstly, that Johnstone Wasonga is not a witness in any legally cognizable sense, as he has no firsthand knowledge of the facts deposed to in his MISC APPLICATION NO. E083 OF 2019 RULING Page 2 statement. Secondly, it is argued that the word-for- word identity of his statement with that of Olga Sechero, including identical typographical errors across forty-five paragraphs, compels the inference that the statement was drafted by counsel and does not represent his independent recollection. The Respondent submits that the Plaintiff is in effect attempting to re-file Olga’s statement through a proxy, which is impermissible given that it was already filed and adopted as evidence. 4. Further, the Respondent asserts that the statement constitutes hearsay upon hearsay, having passed through multiple lawyers, paralegals, and clerks who are the hidden deponents. The defendants are constitutionally entitled to cross-examine such deponent before the statement can be admitted. It is also contended that by reading Olga’s statement, Wasonga violated the rule of witness sequestration, thereby disqualifying him from testifying. The Respondent maintains that any cross-examination of Wasonga would be a constitutional fiction rather than a genuine truth-testing exercise, since he has had full access to Olga’s cross-examination record and is therefore aware of every question and danger point. MISC APPLICATION NO. E083 OF 2019 RULING Page 3 5. The Respondent further argues that admitting Wasonga will generate irreconcilable conflicts in the record between his answers and Olga’s, forcing the defendants to overhaul their defence strategy and causing prejudice and delay that no award of costs can remedy. It is pointed out that the Plaintiff previously resisted the defendants’ late amendment on grounds of prejudice and delay, and cannot now subject the defendants to identical prejudice without violating the equality of arms doctrine under Article 27 of the Constitution. The Respondent also submits that the application is unnecessary, as Chris Gachiri, who swore the supporting affidavit and declared himself conversant with the facts, is already on record as a witness. 6. Finally, the Respondent contends that the balance of prejudice is wholly one-sided: the defendants stand to suffer serious and irreparable harm if the application is granted, while the Plaintiff stands to suffer none if it is dismissed, since Gachiri remains available to carry its evidential case. MISC APPLICATION NO. E083 OF 2019 RULING Page 4 7. Despite directions having been issued for the filing of skeleton submissions, none of the parties had filed submissions at the time of writing this ruling. Analysis and Determination 8. The death of Olga Sechero, the Plaintiff’s initial witness, on 2nd October 2025 is not in dispute. This unfortunate event was neither of the Plaintiff’s making nor was it within its control, and was wholly unforeseeable. To deny substitution on that basis would unjustly penalize the Plaintiff for circumstances beyond its reach. Equally undisputed is that the witness statement of Johnstone Wasonga, dated 18th November 2025, is substantially identical to Olga’s, save for differences in name and job description. 9. The Respondent’s concerns regarding competence and the originality of the statement are matters that ought to be properly reserved for cross-examination, where credibility and reliability can be tested. At this stage, the Court cannot conclusively determine those issues without affording the witness an opportunity to testify. The Defendants will, in any event, retain the full right to challenge the competence of the substituted witness through cross-examination. MISC APPLICATION NO. E083 OF 2019 RULING Page 5 10. I am of the view that part of the prejudice to the Defendant can be mitigated by having the portion of Olga’s testimony that was already on record remain, and Wasonga may be cross-examined only on the remainder of the witness statement so as to avoid the possibility of predetermined questions and answers. Equally, the Defendant’s fears of hearsay are not insurmountable. The Court retains discretion to strike out inadmissible portions of his testimony during trial. 11. I hold the view that the Plaintiff stands to suffer irreparable prejudice if substitution is denied, as it would lose critical evidence necessary to pursue its claim. The Respondent’s prejudice, on the other hand, is curable. Guided by Article 159(2)(d) of the Constitution, this Court must lean towards the need to do substantive justice, especially where prejudice can be cured. Conclusion 12. I do therefore find merit in the Plaintiff’s application dated 18th November 2025. Death of a witness is an unforeseeable event, not attributable to the Plaintiff and the interests of justice demand that the Plaintiff MISC APPLICATION NO. E083 OF 2019 RULING Page 6 be permitted to substitute Olga Sechero with Johnstone Wasonga. Final Orders i. Leave is granted to substitute the deceased Olga Sechero with Johnstone witness, Wasonga. ii. The witness statement of Johnstone Wasonga dated 18th November 2025 is adopted as properly on record. iii. The portion of Olga Sechero’s testimony already recorded shall remain on record. iv. The Respondent shall have full liberty to cross-examine Johnstone Wasonga on the remainder of his testimony. v. Costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3 RD DAY OF JULY 2026. F. MUGAMBI JUDGE Delivered in presence of: Ms Adunga h/b for Dr Arwa for 2nd - 5th defendants Court Assistants: Lillian & Gloria MISC APPLICATION NO. E083 OF 2019 RULING Page 7