https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9760

Imperial Bank Kenya Limited (In Liquidation) v Janco Investments Limited & 9 others (Sued as a Beneficiaries and/or Legal Representatives of the Estate of Abdulmalek Janmohamed) (Civil Case 523 of 2015) [2026] KEHC 9760 (KLR) (Commercial and Tax) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9760 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case 523 of 2015 F Gikonyo, J July 2, 2026 Between Imperial Bank Kenya Limited (In Liquidation) Plaintiff and Janco Investments Limited 1st Defendant Gulshan Janmohamed 2nd Defendant Mehdi Janmohamed 3rd Defendant Salim Janmohamed 4th Defendant Naeem Shah 5th Defendant James Kaburu 6th Defendant Aliya Jahan Ara Janmohamed 7th Defendant Tasneem Abida Janmohamed 8th Defendant Rehana Afshin Janmohamed 9th Defendant Shaista Amal Janmohamed 10th Defendant Sued as a Beneficiaries and/or Legal Representatives of the Estate of Abdulmalek Janmohamed Ruling 1.There are three applications before the court. Two have been filed by the plaintiff and one by the defendants. Plaintiff’s motion dated 25.11.2025 2.The plaintiff filed the application dated 25.11.2025 seeking leave to substitute its witness, Mr. Richard Andrew Durant, with Mr. John Hudson for purposes of adducing evidence on account of unavailability of Mr. Durant due to pressing personal, family-related and health reasons beyond the plaintiff's control. 3.It is supported by the affidavit sworn by Andrew Rutto, Deputy Director (Bank resolution) Kenya Deposit Insurance Corporation on 25.11.2025. Plaintiff’s motion dated 9.12.2025 4.The plaintiff also filed the application dated 9.12.2025 seeking leave to substitute Mr. Mohamud Ahmed Mohamud with Mr. Andrew Rutto (its duly appointed liquidation agent), and to rely on certified documents marked "AR-1" and "AR-2", together with the accompanying certificates of authentication, which do not introduce new evidence but comprise certified copies of bank statements and accounts already filed on the record under "RAD-1". It is supported by the affidavit sworn by Mr. Andrew Rutto on 9.12.2025. 1st to 5th and 7th to 11th defendants’ motion dated 13.1.2026 5.The 1st to 5th and 7th to 11th defendants filed the application dated 13.1.2026 seeking to strike out and expunge the plaintiff's witness statements and documents. It is supported by the affidavit sworn by the 4th defendant, Salim Janmohamed on 13.1.2026. Responses 1st to 5th and 7th to 11th defendants’ response 6.In response to the plaintiff’s applications, the 1st to 5th and 7th to 11th defendants filed replying and further affidavits sworn by Salim Janmohamed on 19.1.2026 and 26.1.2026. 6th defendant’s response 7.The 6th defendant filed three replying affidavits sworn on 3.2.2026. Plaintiff’s response 8.In response to the defendant’s application, the plaintiff filed replying and further affidavits sworn by Andrew Rutto on 23.1.2026 and 9.2.2026. Submissions 9.The application was canvassed through written submissions with oral highlight done on 10.2.2026. 10.The plaintiff filed written submissions dated 10.2.2026. 11.The 1st to 5th and 7th to 11th defendants filed written submissions dated 9.2.2026. 12.The 6th defendant filed written submissions dated 4.2.2026. Plaintiff’s case 13.The plaintiff submitted that a party can be permitted to substitute its witness to prevent delays in the hearing, provided sufficient cause for the substitution is shown, the intended witness is competent and that there is no substantially new evidence being introduced that would prejudice the opposing parties. 14.The plaintiff relied on The Hon. Attorney General v The Law Society of Kenya & Another (Civil Appeal (Application) No. 133 of 2011) to assert that there is sufficient cause for its witnesses to be substituted. 15.The plaintiff submitted that under sections 44(2) and (3) of the Kenya Deposit Insurance Act, a receiver manager or liquidation agent is the lawful and authorized officer to act on behalf of an institution under liquidation. 16.The plaintiff relied on Ogutu & another v Kenya Power and Lighting Company & 2 others (Petition 189 of 2018) [2024] KEHC 2550 (KLR) (Constitutional and Human Rights) (14 March 2024) (Ruling), Lucy Momanyi t/a L. N. Momanyi & Company Advocates v Joel Ombati Nyamweya & Another (2021) eKLR and Meera Umoja Kenya Ltd v David Gikara & another [2020] eKLR where the courts allowed the substitution of a witness on the ground that the initial witness had retired from employment and the new witness was the current office holder with the institutional memory needed as evidence. 17.The plaintiff also relied on Wabwire & 2 others (Suing as Admin of the Estate of Robert Wabwile Wanjala - Deceased) v Muthui [2025] eKLR to the effect that, so long as the case is still part-heard and witnesses remain subject to cross- examination, allowing substitution advances the overriding objective of enabling parties to place all relevant evidence before the Court 18.The plaintiff further relied on Kabu Mumba & 11 others v Pwani Jezozhum Co. Ltd & 6 others [2020] eKLR and Kabu Mumba & 11 others v Pwani Jezozhum Co. Ltd & 6 others (2020) eKLR to assert that there can be no prejudice where there is no new evidence introduced and especially when the defendants will have time to cross-examine the witnesses. 19.The plaintiff asserted that it is not proper for the defendants to ask for documents which have not been admitted as evidence to be expunged from the record. 20.The plaintiff relied on Equity Bank (K) Limited v Wambua & 2 Others [2025] eKLR, where the court held that filing or marking a document for identification does not place it on record and outlined the process documents become part of the judicial record. 21.It highlighted that this position is conceded by the defendants at para. 29 of their replying affidavit sworn by Mr. Salim. 22.The plaintiff submitted that it is yet to rely on documents AR-1 and AR-2 together with its supplementary list of accompanied by the Certificate of Authentication by Robert Gakuo and the Certificate of Authentication by Walter Onyini both dated 1.11.2019 and this will only be if the December application is allowed. 23.The plaintiff further highlighted that it sought leave through its December application that the said documents be deemed properly filed and that there is no prejudice at all to the defendants as they are not new documents but only certified copies of bank statements which had already been filed. 24.The plaintiff argued that the defendants' application is premature, so far as it seeks to have expunged the plaintiff's further documents which are not yet part of the record and which the court has not yet tested to determine their relevance and admissibility. 25.The plaintiff submitted that the court should examine the documents that are sought to be introduced, determine their relevance to the facts in issue and their admissibility, and balance their probative value against any alleged prejudice. In support, it relied on sections 5, 35, 144, and 170 of the Evidence Act and Property Priority Limited v Embakasi Properties Limited [2025] eKLR 26.It asserted that discretion to extend time for production, even after the first hearing, lies with the court itself, as affirmed in Chairman, Secretary & Treasurer suing as the officials/on behalf of House of Hope v Wotta - House Limited [2018] eKLR and Methuselar Keyah Lubembe v Albina Kipkemoi [2019] eKLR. 1st to 5th and 7th to 11th defendants’ case 27.Their main contention is that the plaintiff has no intention of prosecuting its claim, highlighting that this matter has been pending in court for 10 years and counting and that the plaintiff has occasioned numerous adjournments and numerous amended its claim. 28.They highlighted that during the hearing, their counsel indicated his intention to object to some of the plaintiff’s documents (uncertified bank statements) for non-compliance with the Evidence act, after examination in chief of PW1. 29.They argued that by seeking leave to file the subject additional documents after close of pleadings, the plaintiff is conducting a piecemeal case and trial by ambush which would greatly prejudice them. They asserted that these documents were available to the plaintiff before close of pleadings and that no explanation has been given as to why they did not file them either before close of pleadings or before commencement of the trial. 30.They urged the court to allow the application dated 15.1.2026 and dismiss the applications dated 25.11.2025 and 9.12.2025. 31.On the importance of procedural fairness, they relied on Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR and Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information, Communication and Technology & 8 others [2017] eKLR. 32.They submitted on the overriding objective of the court to administer justice efficiently and on the tenet of administering justice without undue regard to procedural technicalities. They, however, asserted that these principles should not be used as a cure for all procedural shortfalls. In support, they relied on Hunker Trading Company Limited v Elf Oil Kenya Limited [2010] KECA 480 (KLR) and Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR, among others. 33.They relied on Abdirahman Abdi also known as Abdirahman Mohamed Abdi v Safi Petroleum Product Ltd & 6 Others [2011] eKLR on the balancing test that guides the court when dealing with procedural violations. 34.They also relied on Mulu v Total Kenya PLC [2025] KEELRC 22 (KLR), for the principle that after close of pleadings a party may only file additional documents with the leave of the court. 35.They relied on Kennedy Nyamwaya Bundi v Insta Products (EPZ) Limited [2017] eKLR to the effect that parties ought to file all their documents prior to commencement of trial as by the time a party takes the witness stand, they ought to know the exact case of their opponent. 36.They highlighted the bulky nature of the over 20,000 pages certified bank statements and the onerous task of confirming that they conform to those previously on record. 6th Defendant’s case 37.The 6th defendant contended that the subject witness statements and documents were filed after the close of pleadings and without leave of court. He highlighted that pleadings formally closed on 1.10.2018, and the suit was certified ready for hearing on 26.4.2019. He also highlighted that on 22.1.2020, this court granted limited and specific leave to file additional documents, with a strict deadline of 17.2.2020. 38.The 6th defendant relied on Ngula v Kuria & 2 others (Environment & Land Case 115 of 2011) [2025] KEELC 4518 (KLR) (16 June 2025) (Ruling) where the court expunged a supplementary list and bundle of documents because discretion should not be exercised to prejudice an opposing party. 39.The 6th defendant asserted that the subject additional documents ought to be struck out as they would prejudice him and violate the principle of equality of arms. He relied on Autogarage Limited v Commissioner of Domestic Taxes (Tax Appeal E062 of 2025) [2025] KETAT 344 (KLR) (16 October 2025) (Judgment) 40.The 6th defendant contended that the the documents are "merely certified copies" does not excuse the breach. That certification and re-filing of existing documents does not override mandatory filing timelines. He also pointed to the plaintiff’s consistent pattern of filing documents out of time, substituting witnesses without leave and seeking adjournment to delay the trial and re-engineer its case. He argued that these all constitute abuse of process. 41.The 6th defendant urged the court to dismiss the plaintiff’s motion dated 9.12.2025 and to strike out the subject witness statements and documents from the record. Oral highlights 42.On 10.2.2026, the plaintiff was represented by Mr. Oraro, SC 43.The 1st to 5th and 7th to 11th defendants were represented by Mr. Ahmednasir, SC. 44.The 6th defendant was represented by Mr. Musa. 45.Mr. Oraro indicated that the substitution is necessary as they are unable to procure the attendance of the previous witnesses after the case started de novo. He asserted that their evidence is not any different. He highlighted that one witness is outside of jurisdiction and another one left employment. 46.Mr. Oraro submitted that since it is to start de novo, the defendants will have the opportunity to test the evidence. He also indicated that only certification under section 106 (B) is sought and that no new evidence has been tendered. That varied reasons caused the delay. He stated that the overriding objective and Article 159 of the Constitution supports their prayers in the circumstances of the case. 47.Mr. Ahmednasir stated that when the matter came up for hearing on 24.2.2020, he mentioned possible objections based on hearsay and the court advised that he would be given omnibus objection. He complained that the plaintiff wants to bring another witness from outside the jurisdiction when each party has weighed their cases. 48.Mr. Ahmednasir faulted the plaintiff for seeking to reinforce its case by bringing new evidence. He asserted that the evidence earlier presented was inadmissible and that the new evidence stands to prejudice the defendants. 49.Mr. Musa added that the matter proceeding de novo does not mean that parties file new pleadings or evidence. That the case should proceed with the evidence earlier filed. He claimed that no reason has been advanced for the unavailability of the expert witness. He argued that expert evidence is inherently personal and relates to the profession and professional witness, thus cannot be exchanged. That experts may reach different conclusions or opinions. 50.In rejoinder, Mr. Oraro, SC stated that paragraphs 15, 17 & 19 of the supporting affidavit to the application dated 9.12.2025 does not reflect Mr. Ahmednasir SC’s submissions. He also submitted that the 6th defendant introduced a new issue of competency of witness to be substituted. He contended that there is no record of omnibus objection. Analysis and Determination 51.The issues for determination are: -1.Whether the plaintiff’s witnesses should be substituted.2.Whether the court should grant the plaintiff leave to produce the subject supplementary documents or expunge them. Substitution of witnesses 52.The plaintiff seeks leave to substitute its witness, Mr. Richard Andrew Durant, with an alternative competent witness, Mr. John Hudson. It seeks that upon grant of leave, the witness statement dated 18.11.2025 be deemed as properly filed and served. 53.The reason for the substitution is that Mr. Durant is unable to travel to Kenya to attend the hearing due to pressing personal, family-related reasons and health challenges beyond the plaintiff’s control. 54.The plaintiff indicated that Mr. Hudson was part of the same investigation team at FTI Consulting LLP that investigated the plaintiff’s post receivership commencing from 2.12.2015. 55.The plaintiff was firm that Mr. Hudson did not introduce any new evidence in his witness statement and would refer to documents that had been filed as annexed to Mr. Durant’s statement. 56.The plaintiff further seeks leave for the substitution of Mr. Mohamud Ahmed Mohamud with Mr. Andrew Rutto, its duly appointed liquidation agent as a witness. He was appointed as a liquidation agent, following the liquidation which was pursuant to a gazette notice dated 8.12.2021. He filed a witness statement dated 5.11.2024. 57.The plaintiff stated that the reason for substitution is that Mr. Mohamud is retired and is no longer in employment of the plaintiff and it is not possible to secure his attendance at trial. 58.The paramount consideration in determining whether to grant leave to substitute a witness, is whether the defendants would suffer any prejudice. Lucy Momanyi t/a L. N. Momanyi & Company Advocates v Joel Ombati Nyamweya & another [2021] eKLR 59.Article 50 (1) of the Constitution states that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, an independent and impartial tribunal or body. The right includes the right to adduce and challenge evidence. 60.The defendants lamented that the plaintiff wants to bring another witness from outside the jurisdiction when each party has already weighed their cases. 61.Mr. Hudson is a substitute for Mr. Durant who was also from outside the jurisdiction. Mr. Hudson was part of the same investigation team at FTI Consulting LLP that investigated the plaintiff’s post receivership commencing from 2.12.2015. The plaintiff affirmed that Mr. Hudson did not introduce any new evidence in his witness statement and would refer to documents that had been filed as annexed to Mr. Durant’s statement. He is therefore competent and appropriate person to speak to the investigations and the result of the investigations. 62.The court, however, notes the considerable delay caused by the plaintiff in the prosecution of this case. Nevertheless, the scale of justice show that, substantive justice will be served in allowing the substitution of the witness; the safeguard of the law being that the witness will be subjected to cross-examination by the defendants. This design of the law eliminates any prejuidcie to the defendants. 63.Mr. Mohamud was the former receiver manager for the plaintiff, appointed on 16.11.2015. Mr. Andrew Rutto is the present liquidation agent for the plaintiff following its liquidation on 8.12.2021. He was appointed on 17.12.2021. 64.Mr. Rutto asserted that his witness statement is substantially the same as Mr. Mohamud and that no new evidence has been introduced. 65.A receiver or liquidator is the lawful and authorized officer to act on behalf of an institution under receivership or liquidation, respectively. Sections 44(2) and 54(1) of the Kenya Deposit Insurance Act 66.Appointment of a receiver or liquidator is a matter of law vesting the power and authority of the institution in the receiver or liquidator in accordance with the law. Often, receivership and liquidation may be in a continuum of a legal process. For instance, a receivership, where appropriate, precedes and ushers in liquidation. Section 54(1) ofthe Kenya Deposit Insurance Act and the Insolvency Act. 67.Thus, the duly authorized person to act for the institution in the circumstances of this case is the liquidator. 68.Whereas there has been considerable delay in the prosecution of this case, a substitution based on the fact that the substitute is the liquidator of the institution may not be said to be prejudice to the defendants. 69.In sum about the two applications by the plaintiff, the court finds that the plaintiff has demonstrated sufficient cause for substitution of Mr. Durant with Mr. Hudson and Mr. Mohamud with Mr. Rutto. 70.The court also finds that, despite the prolonged delay occasioned by the plaintiff in the prosecution of this case, prejudice on the defendants is averted as the witnesses are replacing previous witnesses and more importantly, will be subjected to cross-examination. Notably, the hearing of case is starting de novo. Ultimately, the defendants will have the opportunity to challenge the evidence by cross-examining the witnesses and filing their submissions on the evidentiary value or weight of the evidence after the conclusion of the hearing. The court will also give strict directions on the hearing of the case to avoid a situation where the plaintiff will further temporize this case. Leave to produce the documents 71.The plaintiff further seeks leave to rely on certified documents marked “AR-1” and “AR-2”. The documents filed by the plaintiff initially are primarily comprised of bank statements. It became necessary to file another bundle as those earlier filed had not been duly certified. It filed the further bundle of documents on 31.1.2025. 72.The plaintiff asserted that the documents are neither new nor introduce additional information, they merely regularize the certification of material already on court record, previously produced. That copies of entries from a banker’s book are admissible as prima facie evidence once duly certified. 73.The defendants complained that the certified documents were filed after close of pleadings, without leave. They complained that the documents were filed to reinforce the plaintiff’s case after its counsel had alerted the court of a possible objection because the bank statements had not been certified. They lamented over the bulky nature of the over 20,000 pages certified bank statements and the onerous task of confirming that they conform to those previously on record. 74.The court has discretion to extend the period fixed or granted by the court for the doing of anything prescribed or allowed by the Act, even though the period fixed or granted may have expired. Section 95 of the Civil Procedure Act Guiding principles 75.When the court exercises discretion, it ought to do so judicially not capriciously or on a whim according to the unique circumstances of a case. 76.The court is also commanded to administer justice without undue regard to procedural technicalities. Article 159 (2) (d) of the Constitution 77.The court shall, in the exercise of its powers under the Civil Procedure Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). Section 1A of the Civil Procedure Act 78.The overriding objective is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Parties and their counsels are also under a duty to assist the court to facilitate the overriding objective. 79.The principles for consideration on enlargement of time were aptly captured by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others [supra] as follows: -“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 80.This is an old matter, instituted in 2015. The court notes that this is a matter of great public interest and in the circumstances public interest should be a consideration for extending time. 81.Pleadings closed on 1.10.2018. The suit was certified ready for hearing on 26.4.2019. 82.On 22.1.2020, the court granted limited and specific leave to file additional documents, with a strict deadline of 17.2.2020. 83.The supplementary documents were filed outside these specific timelines. 84.For this reason, the defendants seek to have the documents expunged from the record. 85.The defendants counsel indicated that during the hearing of the plaintiff’s case on 24.2.2020 he mentioned possible objections based on hearsay and the court advised that he would be given omnibus objection. 86.On the other hand, the plaintiff’s counsel indicated that there is no record of omnibus objection. He also indicated that the supplementary documents are the same bank statements earlier filed only now certified. 87.The court’s view is that the contentions that the supplementary documents are meant to reinforce or re-engineer the plaintiff’s case are premature and not entirely defensible. 88.As regards possible objection, at this juncture, the court is concerned about the leave question, not production and/ or admissibility of the documents. 89.The plaintiff has sought leave to regularize the filing, and the defendants have not demonstrated any prejudice incapable of being remedied by allowing them ample opportunity to challenge the documents by filing further documents or witness statements directed at the documents as certified or when they are being produced in evidence. 90.Since the case will start de novo, the defendants will have an opportunity to raise any objections to the production, admissibility and/ or probative value of the supplementary documents at the hearing. 91.The defendants further argued that the plaintiff has delayed the prosecution of the matter through numerous adjournments. Conversely, the plaintiff attributed the delay and adjournments to both sides and to the court for reasons beyond their control. It also faulted the defendants for putting in their responses to the November application over a month post deadline. 92.Overall, the court is not persuaded that an order for expungement of the supplementary documents from the record will serve the interest of justice in the circumstances. Disposal 93.The plaintiff’s applications dated 25.11.2025 and 9.12.2025 are allowed. 94.The defendants’ application dated 13.1.2026 is dismissed. 95.The defendants shall intimate to the court whether they need to file any documents or witness statements directed at the certified documents so filed by the plaintiff. Ample time shall be accorded to them. 96.To avoid any further delay, the case shall be fixed for hearing and the plaintiff is ordered not to file any further document or documents unless with prior leave of the court. All parties to ensure that the case is heard during the appointed time. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 2ND DAY OF JULY, 2026-------------F. GIKONYO MJUDGEIn the presence of: -Ms. Khadija/Ahmed Nassir for defendantsMusa for 6th defendantOchieng for Oraro S.C for PlaintiffCA – Ivan/Aggrey