[2022] KEHC 10087 (KLR)

Gatheru Gathemia t/a Gatheru Gathemia & Co Advocates v Munene & another (Civil Suit 133 of 2015) [2022] KEHC 10087 (KLR) (Commercial and Tax) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10087 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 133 of 2015

A Mabeya, J

July 15, 2022

Between

Gatheru Gathemia t/a Gatheru Gathemia & Co Advocates

Plaintiff

and

Jane Gathoni Munene

1st Defendant

Joan Mugure Munene

2nd Defendant

Ruling

1. The application before Court is dated 2/12/2021. The same is brought under Articles 50 & 159 (2) (d) of the Constitution of Kenya, Section 146 (4) of the Evidence Act, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 & Order 18 rule 10 of the Civil procedure Rules 2010.

2. In it, the plaintiff seeks leave to have a further list of documents, annexed to the application, deemed as duly filed and served upon the defendants. He also seeks that his first witness be recalled to produce the said documents in support of his case.

3. The application is premised on the grounds that the documents are necessary, capable of belief and relevant for the just determination of the issues in the dispute herein. That during cross examination of the plaintiff, questions were put to him that necessitated reasonable grounds for the introduction of new evidence in support of his case.

4. The defendants opposed the application vide a replying affidavit sworn on 19/1/2022 by the 1st defendant. She averred that the application lacked merit as it did not satisfy the principles for recalling a witness to testify in chief and to admit additional evidence by a trial court. That a party cannot be allowed to introduce additional evidence in the middle of trial to fill gaps that have arisen during cross examination. That the plaintiff is crafting an entirely new or different case from his pleadings and examination in chief.

5. She further averred that the documents sought to be introduced are unrelated to the main dispute in these proceedings and will therefore obfuscate the real issues in controversy in this matter. She urged that the application be dismissed.

6. The Court has considered the affidavits on record and the oral submissions of Learned Counsel. The issue for determination is whether the court should grant leave to the plaintiff to adduce a further list of documents in support of his case.

7. This is a part-heard matter wherein the plaintiff has already finished his testimony and has been cross-examined at length. The matter was adjourned on 13/10/2022 for further cross-examination on 8/12/2021. However, when the matter resumed, Counsel for the plaintiff indicated that the plaintiff had since filed the present application which should be determined first.

8. It was submitted for the plaintiff that the additional evidence sought to be introduced is necessary for the court to arrive at a fair and just disposal of the suit. That they are relevant and the that the defendants will have a corresponding right to deal with the issues arising from the documents.

9. Conversely, the defendants argued that the application does not meet the principles for adduction of additional evidence and for recalling a witness to testify in chief. That there had been a delay of 7 years to introduce the documents at this stage.

10. Further, that the plaintiff was merely trying to panel beat his case and patch up the weak points that had been laid bare by cross-examination.

11. Order 11 of the Civil Procedure Rules 2010 highlights the pretrial procedures that ought to be followed to ensure that a suit is ready for hearing and to expedite the trial.

12. This suit was instituted via a plaint dated 2/4/2015. It has been mentioned variously including for pre-trial directions and case management. Hearing dates were set and the matter is part heard as already stated. The last date set for hearing was for 8th and 9th December, 2021.

13. In Humphrey Njuru Karanja v John Mwangi Kin’gori & another[2013] eKLR, the court was faced with a similar application. It allowed the application for additional evidence, on the grounds of Article 159 (2) (d) of the Constitution and sections 1A and 1B of the Civil Procedure Act which provide that the court ought to dispense substantive justice and ensure that there is just, expeditious, proportionate and affordable resolution of civil disputes.

14. The court further held:“This court cannot therefore prevent the 1st Defendant from stating its case, as it is his right to seek substantive justice from this court. The only limitation to the exercise of this right would be if there was prejudice to be caused to the Plaintiff in allowing the 1st Defendant to file a further witness statement and further documents.”

15. I will echo the foregoing in this matter. Although this case is very old and has been partially heard, it would be unfair and highly prejudicial to bar the plaintiff from putting before Court all the evidence that is in his possession. Given, that would delay the matter, as it has for six months now. But the Court has to look for the lesser prejudice. Blocking the evidence will forever bar the plaintiff from presenting in Court what he may be considering to be powerful evidence in his favour.

16. I am in agreement that a party should not be allowed to litigate in instalments. That he should not be allowed to patch up his case when he realizes that parts of his case have been shredded in cross-examination. However, a Court of law will allow and accommodate a party if the other party will not suffer prejudice or the prejudice to be suffered can be atoned by an award for costs.

17. In the present case, although the plaintiff has already concluded his testimony, he is still on the dock. The defence will have an opportunity still to test his credibility on the evidence sought to be introduced. However, it would have been different had the plaintiff already closed his case.

18. Since the defendants have not demonstrated the prejudice that they would suffer as they will have a corresponding right to respond to the further evidence adduced, the Court looks at the application favourably.

19. In the spirit of Article 159 (2) (d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act, this court is inclined to permit the filing of the further list of documents, annexed to the application.

20. As such the court finds merit in the application dated 2/12/2021 and grants prayers 2, 3 and 5 therein. The defendants shall have leave to file and serve further documents within 14 days from the date hereof. The defendants shall have the costs of the application capped at Kshs.20,000/-.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2022. A. MABEYA, FCIArbJUDGE